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THE 



UNITED STATES 



AND THE 



STATES 



XnSTDER THE CONSTITUTIOISr. 



BY 



/ 



CHRISTOPHER STUART PATTERSON, 

OF THE PHILADELPHIA BAR. 







PHILADELPHIA: 

T. & J. W. JOHNSON & CO., 

535 Chestnut Street. 
1888. 



V 
\ 



Copyright, 1888, 

BY 

Christopher Stuart Patterson. 



' y 



PREFACE. 



This book has not been written to give expression to 
any theories, either in politics or in law. Its only- 
purpose is to show by a classification and an analysis of 
the judgments of the Supreme Court of the United 
States, what the relations of the United States and the 
states are under the Constitution, as judicially construed 
by the court of last resort. C. S. P. 

CHESTNUT-HILIi. 

9 April, 1888. 



(3) 



TABLE OF CONTEISTTS. 



CHAPTER I. 

THE EELATIOIT OF THE STATES TO THE UNITED STATES AND TO EACH OTHER. 

1. The sanction of the Constitution. 

2. The indissolubility of the Union. 

3. The autonomy of the states. 

4. The delegated character and limited powers of the government of the 

United States. 

5. The Federal supremacy. 

6. The restraints upon the states. 

7. The force and effect of the preamble to the Constitution. 

CHAPTER II. 

THE IMPLIED POWEBS. 

8. The necessity of their existence. 

9. Their constitutional recognition. 

10. The test of the relation of the means to the end. 

11. Illustrations of the exercise of the implied powers. 

12. The legal tender question. 

13. The possible scope of the legal tender cases as authorities. 

CHAPTER in. 

TAXATION. 

14. Taxation defined and limited. 

15. Taxation by the United States. 

16. Direct taxation. 

17. The requirement of uniformity. 

18. Exemption of state agencies from taxation by the United States. 

19. Charges which are not taxes exempt from constitutional restraints. 

V 



VI TABLE OF CONTENTS. 

20. Taxation by the states. 

21. The expressed restraints upon state taxation. 

22. The implied restraint upon state taxation resulting from the federal 

supremacy. 

23. Taxation of national banks. 

24. State taxation as affected by the prohibition of the impairment of the 

obligation of contracts. 

25. State taxation as affected by the grant to Congress of the power of 

regulatinar commerce. 



CHAPTEE IV. 

THE REGULATION OF COMMERCE. 

26. The constitutional provisions. 

27. The history of the commercial clause. 

28. Commerce defined. 

29. The regulation of commerce defined. 

30. The general distinction between the powers of the United States and 

of the states over commerce. 

31. Navigable waters. 

32. Title to the soil under navigable waters. 

33. The regulation of navigation. 

34. The regulation of subjects of commerce. 

35. The taxation of ships. 

36. Duties on tonnage. 

37. The taxation of the water transportation of passengers. 

38. The taxation of goods in interstate ^commerce. 

39. Discriminating taxation against products and manufactures of other 

states. 

40. The taxation of exports by the United States. 

41. State taxation of imports and exports, and inspection laws. 

42. Improvements of navigation. 

43. Dams and bridges. 

44. Ferries. 

45. Wharves and piers. 

46. Pilotage. 

47. Quarantine and sanitary regulations. 

48. Port dues. 

49. Port regulations. 

50. Preferences of ports. 

51. Interstate railway transportation. 

52. Railway tolls. 

53. The police regulation of railways. 

54. State taxation of interstate transportation by railways. 

55. Telegraphs. 

56. Commerce with the Indian tribes. 



TABLE OF CONTENTS. ^vii 

CHAPTER V. 

THE IMPAIRMENT OF THE OBLIGATION OF CONTRACTS. 

57. The prohibition affects only laws passed hj states. 

58. The term "law" defined. 

59. Judgments of state courts not conclusive either as to the non existence 

or noti-impairment, of contracts. 

60. The obligation of a contract defined. 

61. Legislation as to remedies. 

62. The term " contracts " defined. 

63. State insolvent laws. 

64. Judgments as contracts. 

65. Municipal taxation. 

66. History of the prohibition. 

67. State grants. 

68. Express contracts of exemption from taxation. 

69. Express grants of peculiar privileges. 

70. Contracts between a state and its political subdivisions. 

71. Implied contracts in charters of incorporation. 

72. Implied corporate exemption from taxation. 

73. Implied grants of peculiar privileges. 

74. Implied exemption from the operation of the police power. 

75. Implied contracts as to matters of public concern. 

76. The withdrawal by a state of its consent to be sued. 

77. The force and effect of the prohibition as construed by the Supreme 

Court. 

CHAPTER VL 

EX POST FACTO LAWS AND BILLS OF ATTAINDER. 

78. The constitutional provisions. 

79. The distinction between retrospective and ex post facto laws. 

80. Ex post facto laws de&ned. 

81. Illustrations of ex post facto laws. 

82. Illustrations of laws which are not ex post facto. 

83. BiUs of attainder and bills of pains and penalties. 



CHAPTER Vn. 

THE PROHIBITION OF STATE BILLS OF CREDIT. 

84. Bills of credit defined. 

85. What are, and what are not, bills of -credit. 



Viii TABLE OF CONTENTS. 

CHAPTEE VIII. 

STATE COMPACTS. 

86. What compacts are permitted, and what are forbidden. 

CHAPTEE IX. 

FUGITIVES FBOM JUSTICE. 

87. The constitutional provision. 

88. The concurrent jurisdiction of the federal and state courts. 

CHAPTEE X. 

THE JUDICIAIi POWER. 

89. The necessity for the existence of a judicial department of the United 

States. 

90. The constitutional provisions. 

91. The terms of the grant of federal jurisdiction. 

92. The exclusive jurisdiction. 

93. Tiie original jurisdiction. 

94. Eemoval of causes from state courts to the courts of the United States. 

95. The appellate and supervisory jurisdiction. 

96. The requisites of a judicial case. 

97. Courts-martial. 

98. Impeachment. 

99. The judicial construction of the Constitution. 

100. The XI Amendment. 

101. Section 2 of Article III of the Constitution, and the IV Amendment. 

102. The V Amendment. 

103. The VI Amendment. 

104. The VII Amendment. 

105. The exemption of federal process from state control. 

106. Limitation of federal process by the reserved rights of the states. 

107. The limitations of state jurisdiction and process by the federal 

supremacy. 

108. The rule as to conflict of jurisdiction. 

109. Tlie XIV Amendment as affecting state jurisdiction. 

110. The eflFect of Section 1 of Article IV of the Constitution. 

CHAPTEE XI. 

RIGHTS OF PERSON AND OF PROPERTY. 

111. Citizenship of the United States. 

112. Citizenship of a state. 



TABLE OF CONTENTS. IX 

113. The right of suffrage. 

114. The right of serving on juries. 

115. Congressional regulation of the election of senators and representa- 

tives. 

116. Personal and property rights. 

117. The rights within a state of citizens of other states. 

118. Foreign corporations. 

119. The XIII Amendment. 

120. The XIV Amendment. 

121. The police power. 

CHAPTER XII. 

THE FEDERAL SUPREMACY AND THE RESERVED RIGHTS OF THE STATES. 

122. The constitutional declaration of the federal supremacy. 

123. The supremacy of the Constitution. 

124. The supremacy of the acts of Congress. 

125. The supremacy of treaties. 

126. The results of federal supremacy. 

127. The constitutional reservation of the rights of the states. 

128. The nature and extent of those reserved rights. 

129. The importance of the preservation of the rights of the states. 



TABLE OF CASES CITED. 



THE BEFEBENCKS ABE TO THE PAGES. 



Abbott, Eenaud v., 116 U. S. 277 245 
Ableman v. Booth, 21 How. 506 

11, 237 
Acbison v. Huddleson, 12 How. 

293 123 

Adams, County of, Osborne v., 

106 U. S. 181, 109 id. 1 20 
Adams v. Nashville, 95 U. S. 19 31 
^tna Co., Aldrich v., 8 Wall. 591 59 
Aiken, O. P. Co. v., 121 U. S. 444 

19, 106 
Alabama v. Georgia, 23 How. 505 

189, 198 
Alabama, Bank of, v. Dalton, 9 

How. 522 234, 244, 248 

Pace v., 106 U. S. 583 265 

E. R. v., 101 U. S. 832 180 

Alderson, Freeman v., 119 U. S. 

185 246 

Allen V. Louisiana, 103 U. S. 80 274 
V. Newberry, 21 How. 244 47, 197 
A.lmy«. California, 24How. 169 

36, 41, 72, 84 
Albany Bridge Case, The, 2 Wall. 

403 97 

Ailing, Sherlock v., 93 U. S. 99 60 
Allen, Crapo v., 1 Sprague, 184 60 
Alabama, Boyd v., 94 U. S. 645 

178, 269 
Smith?;., 124 U.S. 465 268 

Alexandria Council, Downham v., 

10 Wall. 173 35, 81, 258 

Aldrich v. iEtna Co., 8 Wall. 491 59 
Alabama, Bank of, Darrington v., 

13 How. 12 188 

A. Mfg. Co., Head v., 113 U. S. 9 240 
Ames V. Kansas, 111 U. S. 449 

196, 205, 209 
American Ins. Co., Grace v., 109 

U. S. 278 199 

Amedy, U. S. v., 11 Wheat. 392 243 
American Steamboat Co. v. Chase, 

16 Wall. 522 60 

American Bridge Co., Cardwell 

v., 113 U. S. 205 98 



Amy, Bath County v., 13 Wall. 

244 233 

V. Shelby County, 114 U. S, 

387 179 

V. Supervisors, 11 Wall. 136 233 

Anderson v. Dunn, 6 Wheat. 204 11 

McMillen v., 95 U. S. 37 240 

Terryi;., 95IJ.S. 628 150 

Antoni v. Greenhow, 107 U. S. 

769 152 

Arkansas, Curran i;., 15 How. 304 

172 223 

Beers v., 20 How. 527 18o) 181 

Bank v., 20 How. 530 180 

Armstrong v. Lear, 8 Pet. 52 212 

V. Carson, 2 Dall. 303 244 

Aronson v. Murphy, 109 U. S. 238 232 

Arrowsmith v. Harmoning, 118 

U. S. 194 242 

Arredondo, U. S. v., 6 Pet. 691 275 
Aspinwall v. Daviess County, 22 

How. 364 154 

Assessors, The, Van Allen v., 3 

Wall. 573 29, 30 

Asylum v. New Orleans, 105 U. S. 

362 33, 167, 168 

Atlee, M. & St. P. E. R. v., 94 U. 

S.179 178 

Aurora City, West v., 6 Wall. 39 209 
Augusta, Bank of, v. Earle, 13 Pet. 

519 40, 260 

Augusta, Home Ins. Co. v., 93 U. 

S. 116 34, 171 

Austin, Low v., 13 Wall. 29 25, 83 
Ayres, In re, 123 U. S. 524 180, 220 
A. & G. R. R. V. Georgia, 98 U. 

S. 359 169 

Bates V. Clark, 95 U. S. 204 224 

Bacon v. Howard, 20 How. 22 244 
Bailey v. Magwire, Collr., 22 Wall. 

215 177 

Ballard, Caperton v., 14 Wall. 238 243 
Bank of Alabama v. Dalton, 9 

How. 522 234, 244, 248 



Xll 



TABLE OF CASES CITED. 



Bank of Columbia v, Okely, 4 

Wheat. 2S5 231 

Bank of U. S. v. Deveaux, 5 Cr. 

61 259 

Ball, The Daniel, 10 Wall. 557 

46, 52, 75, 197 
Baltimore, Barron v., 7 Pet. 243 

224 254 
Guy v., 100 U. S. 434 

35, 97, 106, 258 
Bank of U. S., Vorhees v., 10 Pet. 

449 245 

Barry, Gunn «, 15 Wall.610 146, 153 
Barbier v. Connelly, 113 U. S. 27 269 
Barbour, Barton v., 104 U. S.126 230 
Bartemeyer v. Iowa, 18 Wall. 129 267 
Barron v. Baltimore, 7 Pet. 243 

224 254 
Barton v. Barbour, 104 U. S. 126 230 
Barrett v. Holmes, 102 U. S. 651 341 
Barnard, Clark v., 108_U. S. 436 219 
Bank of Kentucky, Briscoe v., 11 

Pet. 317 2, 187, 188, 215, 223 
Banks, The, v. The Mayor, 7 

Wall. 16 26 

Bank v. Supervisors, 7 Wall. 26 26 
Banks, Carneal v., 10 Wheat. 

181 _ 275 

Bank of Georgia, Breithaupt v., 1 

Pet. 238 199 

Bank of Washington v. Arkansas, 

20 How. 530 180 

Bain, Ex parte, 121 U. S. 1 226 

Bank of Hamilton v. Dudley's 

Lessee, 2 Pet. 492 ' 193 

Baldwin v. Franks, 120 U. S. 678 

274, 275 
V. Hale, 1 Wall. 223 

154, 157, 1-58 
Barron v. Burnside, 121 U. S. 186 262 
Barings v. Dabney, 19 Wall. 1 172 
Barber v. Barber, 21 How. 582 197 
Barney v. Keokuk, 94 U. S. 324 

46, 48, 105 
Barry, Gunn v., 15 Wall. 610 

146, 153 
Bank Tax Cases, The, 2 Wall. 

200 26 

Baker v. Boulton, 1 Camp. 493 60 
Batty, McNulty v., 10 How. 72 209 
Bank of U. S. v. Halstead, 10 

Wheat. 51 231 

Bath County v. Amy, 13 Wall. 

244 233 

Beer Co. v. Mass., 97 U. S. 25 

67, 81, 267, 269 
Beers v. Arkansas, 20 How. 527 

180, 181 
Beasley, Burlington v., 94 U. S. 

310 20 



Bedford, Parsons v., 3 Pet. 433 

200, 230 
Bevans, United States v., 3 

Wheat. 337 50, 200 

Berry, Williamson v., 8 How. 495 245 
Beebe, Doe v., 13 How. 7.5 255 

Benedict ■{;. Williams, 8 How. 107 

234, 238 
Betsy, Sloop, Glass v., 3 Dall. 7 245 
Belfast, The, 7 Wall. 624 

47, 59, 197, 236 
Bigler v. Waller, 14 Wall. 297 13 
Binghamtou Bridge, The, 3 Wall. 

51 171,177 

Billings, Providence Bank v., 4 

Pet. 514 23, 33, 176 

BischofF V. Wethered, 9 Wall. 

812 245 

Bingham v. Cabot, 3 Dall. 382 199 
Biddle, Green v., 8 Wheat 1 

149, 166, 172 
Blackbird Ci-eek Marsh Co., Will- 
son v., 2 Pet. 250 93, 98, 111 
Blair v. Cuming County, 111 U. 

S. 363 20 

Blake,Loughborough v.,5 Wheat. 

317 11, 20 

W. & St. P. E. E. v., 94 U. 

S. 180 178 

Blount V. Windley, 95 U. S. 173 

151, 154, 158 
Blyew V. U. S., 13 Wall. 581 196 

Board of Liquidation, Guarantee 

Co. v., Iw5 U. S. 622 151 

Board of Public Works v. Col- 
lege, 17 Wall. 521 244, 245 
Borden, Luther v., 7 How. 1 211, 212 
Boswell V. Otis, 9 How. 336 239, 245 
Bollman and Swartv/ont, Ex parte, 

4 Cr. 75 228 

Borer v. Chapman, 119 U. S. 587 231 
Bonaparte v. Tax Court, 104 U. 

S. 592 18, 24 

Bors V. Preston, 111 U. S. 252 205 
Booth, Ableman v., 21 Plow. 506 

11, 237 
Boulton, Baker v., 1 Camp. 493 60 
Bond, Nugent v., 3 How. 426 235 
Boyd V. Alabama, 94 U. S. 645 

178, 269 
Boyer v. Boyer, 113 U. S. 689 31 

Boom Co. ■;;. Patterson, 98 U. S. 

403 197 

BoyIet).Zacharie,6 Pet. 635 154, 156 

Boyce v. Tabb, 18 Wall. 546 164 

Boyd, Ex parte, 105 U. S. 647 197 

V. United States, 116 U. S. 

616 226 

Bridge Co. v. United States, 105 

U. S. 470 99 



TABLE OF CASES CITED. 



Xlll 



Branch, Tomlinson v., 15 Wall. 

460 34, 171 

Briscoe v. Bank of Kentucky, 

11 Pet. 257 2, 188, 215, 223 
Brown v. Houston, 114 U. S. 622 

35, 74, 85 
V. Maryland, 12 Wheat. 419 

25, 40, 82, 216, 269 
Brant, Landes v., 10 How. 348 244 
Brown, Parkersburg v., 106 U. S. 

487 20 

V. Huger, 21 How. 305 224 

Broadnax, Suydam v., 14 Pet. 67 

154, 156, 238 
Brown, Mills v., 16 Pet. 525 199 

Bruffy, Williams v., 96 U. S. 176 189 
Breithaupt v. Bank, 1 Pet. 238 199 
Brown v. Keene, 8 Pet, 115 199 

Bronson v. Kenzie, 1 How. 311 153 
Bradwell v. The State, 16 Wall. 

130 257, 265 

Bridge Case, The Albany, 2 

Wall. 403 97 

Bridge Proprietors v. Hoboken 

Co., 1 Wall. 116 149, 171, 172 
Bridges, The Passaic, 3 Wall. 

(App.) 782 97 

Bronson v. Kimpton, 8 Wall. 44 12 
V. Eodes, 7 Wall. 229 12 

Bradley v. The People, 4 Wall. 

459 30 

Britton, Evansville v., 105 U, S. 

322 32 

Brewster, Chittenden v., 2 Wall, 

191 r33 

Bull, Fretz v., 12 How. 466 197 

Buckner v. Finley, 2 Pet. 586 2 

Butler V. Penna., 10 How. 402 

154, 179 
Bull, Calder v., 3 Dall. 386 

182, 183, 184 
Buck V. Coldbath, 3 Wall. 334 238 
Burgess, Turpin v., 117 U. S. 504 82 
Burlington, Bogers v., 3 Wall. 

654 20 

Burnside, Barron v., 121 U. S. 186 262 
Burton, Koskonong v., 104 U. S. 

668 ^ 150, 153 

Burgess, Pace v., 92 U. S. 372 81 

Bush V. Kentucky, 107 U. S. 110 

200, 241,242 
Bugbee, Howard v., 24 How. 461 153 
Butchers' Union v. C. C. Co., Ill 

U.S. 760 178,269 

Burlington v. Beasley, 94 U. S. 

310 20 

Buckley, Withers v., 20 How. 84 

226 254 
Butter V. Horwitz, 7 Wall. 258 ' 12 
Bucher, Higgins v., Yelv. 89 60 



Byrne v. Missouri, 8 Pet. 40 187 

B. & O. E. R., U. S. v., 17 Wall. 

322 . 23 

V. Maryland, 21 Wall. 456 

19,36,124 
Maryland v., 3 How. 534 173 
Marshall v., 16 How. 314 259 
V. Koontz, 104 U. S. 5 261 

B. & S. R. E. V. Nesbit, 10 How. 

395 182, 183 

Carpenter v. Pennsylvania, 17 

How. 456 23, 34, 182, 183 

Caldwell v. Carrington, 9 Pet. 86 244 
Caperton v. Bdlard, 14 Wall. 238 243 
Calder v. Bull, 3 Dall. 386 

182,183,184 
California, Hurtado v., 110 U. S. 

517 241 

Cannon v. N. O., 20 Wall. 577 

25,67,121 
Carskadon, Pierce v., 16 Wall. 

234 153,185,186 

Carson, Armstrong v., 2 Dall. 30.* 244 
Cardwell v. A. Bridge Co., 113 U. 

S. 205 _ 98 

Case of the State tax on foreign 

held bonds, 15 Wall. 300 

23, 24, 154 
Case of the State freight tax, 15 

Wall. 232 18, 36, 125, 135 

Campbell v. Holt, 115 U. S., 620 241 
Carrington, Caldwell v., 9 Pet. 86 244 
Cabot, Bingham v., 3 Dall. 382 199 
Catlettsburg, Packet Co. v., 105 

U. S. 559 19, 106 

Capron v. Van Noorden, 2 Cr. 126 199 
Caleb, Hawthorne v., 2 Wall. 10 153 
Carey, Ottawa v., 108 U. S. 110 20 
Carneal v. Banks, 10 Wheat. 181 275 
California, Almy v., 24 How. 169 

36, 41, 72, 84 
Campbell, Robinson v., 3 Wheat. 

212 200 

Carryl, Taylor v., 20 How. 583 238 
Card, Maguire v., 21 How. 248 

47, 197 
Case, Perriman's, 103 U. S. 714 149 
Carroll v. Safibrd, 3 How. 441 27 

Carpenter, Haines v., 91 U. S. 254 233 

C, B. & Q. R. R. V. Iowa, 94 U. S. 

155 126, 178, 268, 269 

C. C. Co., Butchers' Union v., Ill 

U, S. 760 178, 269 

Perrine v., 9 How. 192 177 

C. D. Co. V. Shepherd, 20 How. 

232 259 

Cease, Robertson v., 97 U. S. 646 199 
C. Gas Co., Louisiana Gas Co. v., 
115 U. S. 688 172 



XIV 



TABLE OF CASES CITED. 



Chase. Steamboat Co.u, 16 Wall. 

' 522 60 

Chapman, Borer v.,U9 U. S. 587 231 
Charleston, Murray v., 96 U. S. 

432 S4, 172 

Weston v., 2 Pet. 449, 26 

Church V. Kelsey, 121 U. S. 282 

179, 241 
Chemung Canal Bank v. Lowery, 

93 U. S. 72 . _ 258 

Chicago, Escanaba Co. v., 107 U. 

S. 678 98, 268 

Chisholm v. Georgia, 2 Dall. 419 

199, 217 
Chicago V. Sheldon, 9 Wail. 50 

33,147, 167 
Ducat v., 10 Wall. 410 

40, 260, 261, 262 
Chy Lung v. Freeman, 92 U. S. 

275 _ _ 38,71 

Cherokee Nation v. Georgia, 5 

Pet. 1 143, 198, 212 

Chambers, Kennett v., 14 How. 38 213 
Christ Church v. Philadelphia, 

24 How. 300 168 

Christmas v. Russell, 5 Wall. 290 244 
Chicago Life Ins. Co. v. Needles, 

113U. S. 574 177 

Church?;. Hubbart, 2 Cr. 187 212 
Chirac v. Chirac, 2 Wheat. 259 

111 251 275 
Cherokee Tobacco, The, 11 Wall,' 

616 274 

Charles River Bridge v. Warren 

Bridge, 11 Pet. 420 177 

Cheever v. Wilson, 9 Wall. 108 244 
China, The, 7 Wall. 53 115, 1 16 

Challen, Holland v., 110 U. S. 15 200 
Chittenden v. .Brewster, 2 Wall. 

191 233 

City, The, v. Lawson, 9 Wall. 477 147 
Civil Rights Cases, 109 U. S. 3 266 
Clarke, Ex parte, 100 U. S. 399 254 
Clark, Bates v., 95 U. S. 204 224 

Clark V. Barnard, 108 U. S.436 

219 225 
Clark, Mitchell w., 110 U. S. 333 ' 232 
Claffin V. Houseman, 93 U. S. 130 

'*" 235 236 

Clark, Keith v., 97 U. S. 454 146, 172 
Clarke, Waring i;., 5 How. 441 

46, 197, 200 
Close V. Glenwood Cemetery, 107 

U.S. 400 169 

Clinton Bridge, The, 10 Wall. 

454 99 

C. M. I. Co., Goodwin v., 110 U. S. 

1 263 

C. M. L. Ins.Co.uCushman, 108 

U. S. 51 150 



Coe V. Errol, 116 U. S. 517 

18, 24, 35, 74, 75, 82 
Cole V. La Grange, 113 U. S. 1 20 
Collet V. Collet, 2 Dall. 294 254 

Columbia College, Board, etc.,?;., 

17 Wall. 521 244, 245 

Compagnie G. T., People v., 107 

U. S. 59 36, 87 

Commissioners, Newton v., 100 U. 

S. 548 179 

Connolly, Barbier v., 113 U. S. 27 269 
Cook V. Penna., 97 U. S. 566 

25, 40, 83 
Cooper Mfg. Co. v. Ferguson, 113 

U.S. 727 215,263 

Cooper V. Reynolds, 10 Wall. 308 

245, 246 
County of Balls v. Douglass, 105 

U. S. 728 147 

County of Mobile v. Kimball, 102 

U. S. 691 40, 90 

Coster, Runyan v., 14 Pet. 122 260 
Cohen, McElraoyle v., 13 Pet. 312 244 
Connelly, Eobb u, 111 U. S. 624 

191,237 
Coupon Cases, Virginia, 114 U. 

S. 270 172, 188, 224, 274 

Cook V. Moffat, 5 How. 295 154, 157 
Collector, Hornthall v., 9 Wall. 

560 199 

Commissioners, The, The People 

v., 2 Bl. 620 26 

People v., 104 U. S. 466 35, 62 

People v., 4 Wall 244 29, 30 

Dobbins v., 16 Pet. 435 26 

Cooley V. The Board of Wardens, 

12 How. 299 111,116,134 

Commissioners of Taxes, etc., Peo- 
ple v., 94 U. S. 415 32, 33, 155 
of Tippecanoe v. Lucas, 93 

U. S. 108 241 

Cowles V. Mercer County, 7 Wall. 

118 260 

Commonwealth, Nat. Bank v., 9 

Wall. 353 28, 30, 33 

Coombs, U. S V, 12 Pet. 72 46 

Conway v. Taylor, 1 Bl- 603 101, 268 
Coudry, Smith v., 1 How. 28 243 

Continental Ins. Co., Doyle v., 94 

U. S. 535 262 

Cox, St. Clair v., 106 U. S. 350 

245, 247, 261 
Commonwealth, Pervear v., 5 

Wall. 475 29, 254, 269 

Commissioners, The, Mitchell v., 

91 U. S. 206 _ 126 

Coite, Society for Savings v., 6 

Wall. 594 ^ 26 

Commonwealth, The, MoGuire v., 

3 Wall. 387 29, 269 



TABLE OF CASES CITED. 



XV 



Corson v. Maryland, 120 U. S. 

502 35, 77, 258 

Commissioners of Immigration v. 

North German Lloyd, 92 

U. S. 269 36, 71 

Cohens v. Virginia, 6 Wheat. 264 

193,194,195,196,197,199, 
201, 209, 211, 215, 216, 222 
Cooper, The Mayor v., 6 Wall. 

253 193, 196, 209 

CoUidge, U. S. v., 1 Wheat. 415 200 
Covell V. Heyman, 111 U. S. 176 

237, 238 
Coldbath, Buck v., 3 Wall. 334 238 
Corfield v. Coryell, 4 Wash. C. C. 

371 256 

Coryell, Corfield v., 4 Wash. C. C. 

371 256 

Conner v. Elliot, 18 How. 593 257 
Craig V. Missouri, 4 Pet. 411 187 

Crandall v. State of Nevada, 6 

Wall. 35 

28, 73, 84, 87, 125, 134, 258 
Creighton, (ireen v., 23 How. 90 238 
Crownitishield, Sturges v., 4 

Wheat. 122 2,4,16,40, 

111,146,149,153 154,155, 

157, 164, 201, 215 
Crowley, Soon Hing v., 113 U. S. 

703 269 

Crow Dog. Ex parte, 109 U. S. 556 144 
Cruikshank, U. S. v., 92 U. S. 542 

201, 251, 253, 254 
Crapo V. Allen, 1 Sprague, 184 60 

C. S. Ey. V. Gebhard, 109 U. S. 

527 262 

Cummings v. Nat. Bank, 101 U. S. 

677 32 

Curran v. Arkansas, 15 How. 304 

172, 223 
Cunningham v. M. & B. R E. 109 

T. S. 446 220 

Cushman, C. M. L. Ins. Co. v., 

108U. S. 51 150 

Culver, Queensbury v., 19 Wall, 

83 20 

Cuttings. Seabury, 1 Sprague, 522 60 
Cummings v. Missouri, 4 Wall. 

277 184, 185, 186 

Cuming County, Blair v., Ill U. 

S. 363 20 

Curtis, Ex parte, 106 U. S 371 12 
Curtis V. Whitney, 13 Wall. 68 150 
C. & A. E. E. V. W. F. Co., 119 U. 

S. 615 212, 213, 243 

C. & B. Co. V. N. O., 99 U. S. 97 26 
C. & A. E. E. V. W. F. Co., 108 

U. S. 18 244 

C. & F. E. E. V. Hecht, 95 U. S. 

168 149 



C. & N. W. E. E. V. Fuller, 17 

Wall. 560 126, 268 

V. Whitton, 13 Wall. 270 

60, 200, 232 
C. & N. W. Ey., Peck v., 94 U. S. 

164 127, 178, 268 

D'Arbel, Urtetiqui v., 9 Pet. 692 248 
Darlington, County of Living- 
ston v., 101 U. 8. 407 20 
Dabney, Barings v., 19 Wall. 172 
Daviess County, Aspinwall v., 22 

How. 364 154 

Davenport, Sinnot ■;;., 22 How. 

227 53, 68, 122, 270 

Foster v., 22 How. 244 

53, 68, 122, 270 
Daniel Ball, The, 10 Wall. 557 

46, 52, 75, 197 
Dartmouth College Case, 4 Wheat. 

518 154, 173, 174, 178 

D'Arcy v. Ketchum, 11 How 165 245 
Dalton, Bank of Alabama v., 9 

How. 522 234, 244, 248 

Davidson v. N. O., 96 U. S. 97 

226, 240, 254 
Davis V. Gray, 16 Wall. 203 166, 218 
Daggs, Ewell v., 108 U. S. 143 150 
Davis, Tennessee v., 100 U. S. 

257 200, 209 

Darlington v. The Bank of Ala- 
bama, 13 How. 12 188 
Davis V. Packard, 7 Pet. 276 236 
Day V. Gallop, 2 Wall. 97 238 
Day, The Collector v., 11 Wall. 

113 23 

Darst, Duncan v., 1 How. 301 237 
De Cuir, Hall v., 95 U. S. 485 

54, 270 
Delmas v. Ins. Co., 14 Wall. 661 

148, 149, 152 
Delaware, Neal v., 103 U. S. 370 

253 

E. E. Tax, The, 18 Wall. 

206 34. 35, 133, 177 

De Treville v. Smalls, 98 U. S. 517 22 

Deveaux, The Bank v., 5-Cr. 61 259 

De Young, League v., 11 How. 

185 146, 150 

Dea V. Jersey Co., 15 How. 426 47 
De Bolt, Ohio L., 7. & T. Co. v., 

16 How. 416 147,149,177 
Dennick v. E. E. Co., 103 U. S. 

11 197 

Demire, Harris v., 3 Pet. 292 236 
Dewitt, U. S. v., 9 Wall. 41 200, 267 
Dial V. Eeynolds, 96 U. S. 340 233 
Dietzsel v. Huidekoper, 103 U. 

S. 494 233 

Dillin, Hamilton v., 21 Wall. 73 11 



XVI 



TABLE OF CASES CITED. 



Diggs V. Walcot, 4 Cr. 179 233 

Donoghue, Hanley «., 116 U- S. 1 

213, 245 
Doe V. Beebe, 13 How. 25 255 

Dorrance, Van Home v., 2 Dall. 

304 _ 193 

Downham «. Alexandria Council, 

10 Wall. 173 35, 81, 268 

Dodge V. Woolsey, 18 How. 331 193 
Dobbins v. The Commissioners, 

16 Pet. 435 26 

Dooley v. Smith, 18 Wall. 604 13 
Douglass V. County of Pike, 101 

U. S. 677 147 

County of Rail v.. 105 U. S. 

728 ' 147 

Dowley, Waite v., 94 U. S. 527 33 
Doyle V. Continental Ins. Co., 94 

U. S. 535 262 

Dred Scott v. Sandford, 19 How. 

393 199 251 

Drehman v. Stifle, 8 Wall. 595 ' 151 

Drew, Paut v., 10 How. 218 172 

Trigg v., 10 How. 224 174 

Drogan, Hobart v., 10 Pet. 108 

111, 116, 197, 232 
Duncan, Witherspoon v., 4 Wall. 

210 23 

V. Darst, 1 How. 301 237 

Ducat V. Chicago, 10 Wall. 410 

40, 260, 261, 262 
Dudley's Lessee, Bank v., 2 Pet. 

492 ' 193 

Dunn, Anderson v., 6 Wheat. 204 11 
Duryee, Mills v., 7 Cr. 481 244 

Duluth, Wisconsin v., 96 U. S. 

379 89 

Dupasseur v. Rocherean, 21 Wall. 

130 249 

Durant, The Supervisors v., 9 

Wall. 415 233 

Dynes v. Hoover, 20 How. 65 213 
D. & R. C. Co., Rundle v., 14 

How. 30 47 

East Saginaw, Salt Co v., 13 Wall. 

373 - 168 

East Hartford v. Hartford Bridge 

Co., 10 How. 511 173 

Earle, Bank of Augusta v., 13 

Pet. 519 40, 260 

Easton, Lehigh Water Co. v., 121 

U. S. 88 147, 148 

Eagle, The. 8 Wall. 15 197 

East St. Louis, Wiggins Ferry 

Co. v., 107 U. S. 365 

34, 35, 41, 43, 66, 102, 170 
Edwards «. Kearzey, 96 U. S. 595 146 
V. Elliott, 21 Wall. 532 

59, 200, 230, 233, 236, 254 



Edwards, Hughes v., 9 Wheat. 496 275 
Effinger v. Kenney, 115 U. S. 566 152 
Elmendorf v. Taylor, 10 Wheat. 

152 243 

Elliott, Edwards v., 21 Wall. 532 

59, 200, 230, 233, 236, 254 

V. Piersol, 1 Pet, 328 215 

Ellis, Parrish v., 16 Pet. 451 200 

Ellerman, R. R. v., 105 U. S. 166 173 

Elizabeth Oil Cloth Co., Herd- 

ritter -y., 112 U. S. 294 238 
Elliott, Conner v., 18 How. 593 257 
Embry v. Palmer, 107 U. S. 3 11, 248 
Ennis v. Smith, 14 How. 40 212, 245 
Errol, Coe v., 16 U. S. 517 

18, 24, 35, 74, 75, 82 
E.Ry. V. Penua., 2L Wall. 492 

34, 36, 177 
Erie Railway Co. v. Penna., 15 

Wall. 282 136 

Erwin v. Lowry, 7 How. 181 

234, 238 
Escanaba Co. v. Chicago, 107 U. 

S. 678 98, 268 

Evansville Bank v. Britton, 105 

TJ a qoo QO 

Ewell V. Daggs, 108 U. S. 143 150 
Ewing, Gastler v., 3 How. 767 153 
Express Co. v. Kountze, 8 Wall. 

342 259 

Exchange Bank, Knox v., 12 Wall. 

379 148 

Hill ^., 108 U. S. 319 32 

Ex parte Garland, 4 Wall. 333 

184, 186 
Pennsylvania, 107 U. S. 174 116 
Madrazzo, 7 Pet. 627 220 

Bollman & Swartwout, 4 

Cr. 75 200, 228 

Boyd, 105 U. S. 647 197 

Curtis, 106 U. S. 371 12 

Clark, 100 U. S. 399 254 

Fonda, 117 U. S. 516 210 

Jackson, 96 U. S. 727 11 

Lange, 18 Wall. 163 228, 229 
Royall, 117 U. S. 241 210 

Wall, 107 U. S. 265 226 

Wilson, 114 U.S. 417 226 

Yarborough, 110 U. S. 651 

252, 254 
Bain, 121 U. S. 1 226 

Crow Dog, 109 U. S. 556 144 

Hagar, 104 U. S. 520 116 

Reggel, 114 U. S. 642 190, 191 
Siebold, 100 U. S. 371 254 

Milligan, 4 Wall. 2 213, 225, 228 
Mason, 105 U. S. 696 213 

Virginia, 100 U. S. 339 

242, 246, 253 
Christie, 3 How. 318 235 



TABLE OF CASES CITED. 



XVll 



Ex -parte McNiel, 13 Wall. 236 

llf), 116 
Gordon, 104 U. S. 515 60, 200 
Ferry Co., 104 U. S. 519 60, 200 

Eyster v. Gaff; 91 U. S. 521 235 

Fanning v. Gregoire, 16 IIow. 

524 101, 177, 268 

Fargo V. Michigan, 121 U. S. 230 

36, 84, 132, 137 
Falconer, E. E. Co. v., 103 U. S. 

821 159 

Farrington v. Tennessee, 95 U. S. 

679 167 

Fenno, Veazie Bank v., 8 Wall. 

533 10, 22, 23 

Ferguson, Cooper Mfg. Co. i'., 

113U. 8. 727 215,263 

Tucker?;., 22 Wall. 527 

27, 33, 34, 170, 177 
Ferrera, U. S. v., 13 How. 40 209 
Felton, Teal v., 12 How. 284 235 

Ferguson v. Ilarwood, 7 Cr. 408 243 
Fertilizing Co. v. Hyde Park, 97 

U. S. 659 178, 269 

Feusier, Lammon ■«., Ill U. S. 17 239 
Finley, Buckner ?)., 2 Pet. 586 2 

Fisher, U. 8. v., 2 Cr. 358 10 

Fitzhugh, Genessee Cliief v., 12 

How. 443 46, 47, 197 

Fisk i;. Jefferson Police Jury, 116 

U. S. 131 146, 154, 159, 179 
First Municipality, Permoll v., 3 

IIow. 589 255 

F. L. E. E. V. Lowe, 114 U. S. 

525 27 

Fletcher v. Peck, 6 Cr. 87 

153, 164,182, 183, 274 
Fleeger, Poole v., 11 Pet 185 189 
Fleming, McLean v., 96 U. S. 

248 61 

Florida v. Georgia, 17 How. 478 

189, 198 
F. L. & T. Co., Stone v., 116 U. 

S.307 128, 178 

Forbes v. Gracey, 94 U. S. 762 28 
Foster v. Neilson, 2 Pet. 253 274 

Fonda, Ex -parte, 117 U. S. 516 210 
Foreign held bonds. State tax 

on, 15 Wall. 300 23,24,154 
Ford V. Surget, 97 IT. S. 594 147, 189 
Foster v. Kansas, 112 U. S. 201 267 
V. Davenport, 22 How. 244 

53, 68, 122, 270 
V, Master and Wardens of 

the Port of New Orleans, 

94 U. S. 246 120 

Fouvergne v. New Orleans, 18 

How. 470 197 

Fowler v. Lindsay, 3 Dall. 411 222 



Fox V. Ohio, 5 How. 432 235, 254 
U. S. v., 95 U. S. 670 185, 200, 201 
U. S. v., 94 U. S. 315 255 

Frazer, The John, The Jas. Gray 

u, 21 How. 184 121,268 

Freeborn v. Smiih, 2 Wall. 160 183 
French, Ins. Co. v., 18 How. 404 

245, 246, 261 
Freeman, Chy Lung v., 92 U. 8. 

275 36, 71 

Freight Co., Greenwood i)., 105 

U. S. 13 169 

Freeman t). Alderson, 119 U, S. 

185 246 

Frederickson v. Louisiana, 23 

IIow. 445 275 

Franks, Baldwin v., 120 U.S. 678 

274 275 
Fretz V. Bull, 12 IIow. 466 ' 197 

Fremont v. U. 8., 17 How. 542 213 
French v. Hay, 22 Wall. 250 233 

Freeman v. liowe, 24 How. 450 

237, 238 
Furman v. Nichol, 8 Wall. 44 172 
Fuentes, Gaines v., 92 U. S. 18 197 
Fuller, C. & N. W. E. E. v., 17 

Wall. 560 126, 268 

F. and M. Nat'l Bank v. Smith, 

6 Wheat. 131 154, 156, 157 

Garland, Ex parte, 4 Wall, 333 

184,186 
Gage, Machine Co. v., 100 U. S. 

676 35, 78, 258 

Gaines, E. E. Cos. v., 97 U. 8. 

697 33, 34, 155, 168, 171 

Gantlyr. Ewing, 3 How. 107 153 
Garrett, Merriwether u, 102 U. S, 

472 19, 154, 159 

Gaines v. Fuentes, 92 U. S. 18 197 
Gaff, Eyster v., 91 U. S. 521 235 

Galceran, Leon v., 11 Wall. 185 236 
Gallup, Day v., 2 Wall. 97 238 

Gebhard, C. S, Ey. v., 109 U. S. 

527 263 

Georgia, A. & G. E. E. v., 98 U. 

S. 359 169 

Cherokee Nation v., 5 Pet. 1 

143, 198, 212 
Governor of, v. Madrazzo, 1 

Pet. 110 219, 220 

Chisholm v., 2 Dall. 419 199, 217 
V. Stanton, 6 Wall. 71 212 

South Carolina v., 93 U. S. 4 

87, 122 
Worcester v., 6 Pet. 515 

143, 144, 209 
Alabama ■;;., 23 How. 505 189, 1 98 
Florida v., 17 How. 478 189, 198 
V. Brailsford, 2 Dall. 402 219 



XVlll 



TABLE OF CASES CITED. 



Gelston, Hoyt v., 3 Wheat. 324 

201, 212, 237 
Genesee Chief v. Fitzhugh, 12 

How. 443 46, 47, 197 

G. Ferry Co. v. Pennsylvania, 

114 U. S. 196 

36, 41, 65, 100, 103 
Gilman v. Sheboygan, 2 Bl. 510 

19,159 
V. Philada., 3 Wall. 713 4, 95, 97, 
134, 201 
Gibbons v. Ogden, 9 Wheat. 1 

8,16,34,40,41, 42,44,50, 86, 
100, 108, 117, 123, 215, 216 
Gilfillan v. Union Canal Co., 109 

U. S. 401 150 

Glass V. Sloop Betsy, 3 Ball. 7 245 
Glenwood Cemetery, Close v., 107 

U. S. 466 169 

Glover, Huse v., 119 U. S. 543 

19, 91, 98 
G. N. & P. S. S. Co., Lord v., 102 ' 

U. S. 541 57 

Goodwin v. C. M. I Co., 110 U. 

S. 1 263 

Gordon v. U. S., 2 Wall. 561 209 

Goodtitle v. Kibbie, 9 How. 471 255 
Godfrey v. Terry, 97 U. S. 171 199 
Gray, The Jas., v. The John Fra- 

■ ser, 21 How. 184 121,268 

Grace v. American Ins. Co., 109 

U.S. 278 199 

Grav, Davis v . 16 Wall. 203 166, 218 
Grisar v. McDowell, 6 Wall. 363 224 
Greenhow, Antoni v., 107 U. S. 

769 152 

Greenman, Juilliard v., 110 U. S. 

421 3, 12, 13, 215 

Greenhow, Hartman v., 102 U. S. 

672 172 

Greenwood v. Freight Co., 105 U. 

S. 13 169 

Greneaiix, Prevost v., 19 How. 1 275 
Gregoire, Fanning v., 16 How. 

524 101, 177, 2C,8 

Grima, Mager v., 8 How. 490 18, 24 
Griffith, Stevens v.. Ill U. S. 48 147 
Gross V. U. S. Mtge. Co., 108 U. 

S. 477 149, 265 

Groves v. Slaughter, 15 Pet. 449 

83, 252, 255 
Greenhow, Moore v., 114 U. S. 

338 152 

Graham, Strader v., 10 How. 93 252 
Griswold, Hepburn v., 8 Wall. 

603 13 

Gracey, Forbes v., 94 U. S. 762 28 
Green v. Biddle, 18 Wheat. 1 

149, 166, 172 
V. Creighton, 23 How. 90 238 



Guarantee Co. v. Board of Liqui- 
dation, 105 U. S. 622 151 
Gut V. The State, 9 Wall. 35 185 
Guy V. Baltimore, 100 U. S. 434 

35, 77, 106, 254 
Gunn V. Barry, 15 Wall. 610 146, 153 
G. & C. Co., Knowles v., 19 

Wall. 58 247 

Hagar, Ex parte, 104 U. S. 520 116 
Hager, Brown v., 21 How. 305 224 
Hagar v. Reclamation District, 

111 U. S. 701 12, 240 

Harris v. Dennie, 3 Pet. 292 236 

Harwood, Ferguson v., 7 Cr. 408 243 
Hagood V. Southern, 117 U. S. 52 219 
Halslead, Bank of U. S. ^y , 10 

Wheat. 51 231 

Haile, Mason v., 12 W'heat. 327 149 
Hall V. Wisconsin, 103 U. S. 5 172 
Hamilton v. Dillin, 21 Wall. 73 11 
U. S. v., 3 Dall. 17 . 28 

Hamersley, N. H. & N. Co. v., 104 

U. S. 1 178, 269 

Hauenstein i'. Lynham, 100 U. S. 

483 275 

Hanley v. Donoghue, 116 U. S. 1 

^ 213, 245 
Hampton *. McConnell, 3 Wheat. 

234 _ 244 

Happersett, Minor v., 21 Wall. 

163 _ 252, 265 

Harmony, Mitchell v , 13 How. 

li4 224 

Harris v. Hardman, 14 How. 334 

239, 245 
Hardman, Harris v., 14 How. 334 

239, 245 
Harmoning, Arrowsmith v., 118 

U. S. 194 242 

Hart, White v., 13 W^all. 646 

146, 152, 264 
Hall V. De Cuir, 95 U. S. 485 64, 270 
Hale, Baldwin v., 1 Wall. 223 

154, 157, 158 
Haas, U. S. v., 3 Wall. 407 144 

Hagan, Pollard v., 3 How. 212 

2, 48, 255 
V. Lucas, 10 Pet. 400 233, 238 
Hackett v. Ottawa, 99 U. S. 86 20 
Hamilton, Bank of, v. Dudley's 

Lessee, 2 Pet. 492 193 

Haines v. Carpenter, 91 U. S. 

254 233 

Hartford Bridge Co., East Hart- 
ford v., 10 How. 511 172 
Harris, U. S.v., 106 U. S. 629 

2. 264, 266, 274 
Hamilton v. V. S. & P. R. R., 119 

U. S. 280 98 



TABLE OF CASES CITED. 



XIX 



Hayburn's Case, 2 Dall. 409 209 

Hawthorne v. t'alef, 2 Wall. 10 153 
Harbor Comm'rs, Weber v., 18 

Wall. 57 47, 48, 255 

Hayward, McCracken v., 2 How. 

608 15S 

Haver v. Yaker, 9 Wall. ^2 275 

Hartman v. Greenhow, 102 U. 

S. 672 172 

Havemeyer v. Iowa Co., 3 Wall. 

294 147 

Hamilton Co. v. Massachusetts, 6 

Wall. 632 26 

Hays V. P. M. S. S. Co., 17 How. 

596 36, 64 

Hay, French v., 22 Wall. 250 233 
Head v. A. Mfg. Co., 113 U. S. 9 l40 
V. The University, 19 Wall. 

526 179 

Hecht, R. E. v., 95 U. S. 168 149 
Henderson v. The Mayor of N. 

Y., 92 U. S. 259 36, 69, 70 
Hepburn v. School Directors, 23 

Wall. 480 31, 32 

V. Griswold,_8 Wall. 603 13 

Herdritter v. Elizabeth Oilcloth 

Co., 112 U. S. 294 238 

Heyman, Co veil ?;., Ill U. S. 176 

237, 238 
Hinson v. Lott, 8 Wall. 148 

35, 78, 258 
Hickey's Lessee v. Stewart, 3 

How. 750 245 

Hill V. Exchange Bank, 105 U. 

S. 319 32 

Hine, The, v. Trevor, 4 Wall. 

556 59, 197, 235 

Higgins V. Bucher, Yelv. 89 60 

Himely, Kose v., 4 Cr. 272 212, 245 
Howard, Pevroux v., 7 Pet. 324 46 
Homeland, Wurts v., 114 U. S. 606 240 
Holliday. U. S. v., 3 Wall. 407 144 
Howard v. Bugbee, 24 How. 461 1 53 
Hnlkee, Phelps v., 1 Dall. 261 246 
Holyoke Co. v. Lyman, 15 Wall. 

500 ■ _ 170 

Plollingsworth •!;. Virginia, 3 Dall. 

378 217 

Holmes, Barrett v.. 102 U. S. 651 241 
Hornthall v. Collector, 9 Wall. 

560 199 

Holt, Campbell v., 115 U. S. 620 241 
Home Insurance Co. ■;;. Morse, 20 

Wall. 445 262 

Hopkins, Wo Lee v., 118 U. S. 

356 265, 269 

Yick Wo v., 118 U. S. 356 

265, 269 
Houpt V. Utah, 11 U. S. 574 185 
Howard, Bacon v., 20 How. 22 244 



Hoyt V. Gelston, 3 Wheat. 324 

201, 2l2, 237 
Houston, Brown v., 114 U. S. 622 

35, 74, 85 
Hotchkiss, Kirtland v., 100 U. S. 

491 18,23,24 

Houston V. Moore, 5 Wheat. 49 

4,111,201,213,235 
Howe, Freeman v., 24 How. 250 

237, 238 
Holmes, Barrett v., 102 U. S. 651 150 
Home Ins. Co. v. Augusta, 93 U. 

S. 116 _ 34,177 

Holmes v. Jennison, 14 Pet. 540 

188, 252, 255 
Hoover v. Dynes, 20 How. 65 213 
Horwitz, Butler v., 7 Wall. 258 12 
Hoboken Co., Bridire Projirietors 

v., 1 W^all. 116 149, 171, 172 
Hobart v. Drogan, 10 Pet. lOS 

111, il6, 179, 232 
Houseman, Claflin v., 93 U. S. 130 

235 236 
Hook, Payne v., 7 Wall. 425 ' 197 
Holland v. Challen, 110 U. S. 15 200 
Hoboken L. & I. Co., Murray's 

Lessee v,, 18 How. 272 

226 229 
Hoyt V. Sprague, 103 U. S. 613 ' 255 
Hubbart, Church v., 2 Cr. 187 12 

Humes, N. P. Ey. v., 115 U. S. 

512 268 

Hughes V. Edwards, 9 Wheat. 489 275 
Humphrey v. Pegues, 16 Wall. 

244 167, 168, 171 

Huidekoper, Dietzsch v., 103 U. 

S. 494 _ 233 

Hunter's Lessee, Martin v., 1 

Wheat. 304 1, 2, 6, 8, 11, 

193-5, 202, 204, 206, 215, 232 
Huse V. Glover, 119 U. S. 543 

19, 91, 98 
Huddleson, Achison v., 12 How. 

293 123 

Hudson, U. S. v., 7 Cr 32 200, 205 
Hunt V. Pallas, 4 How. 589 209 

Hull, Owings v., 9 Pet. 607 213, 243 
Hudson, Lenox v., 109 U. S. 468 233 
Hurtado v. California, 110 U. S. 

517 241 

Husen, E. E. v., 95 U. S. 465 

119, 127, 270 
Hyde Park, Fertilizer Co. v., 97 

U. S. 659 178, 269 

Hyde, Crippendorf v., 110 U. S. 

276 239 

Hvltonv. U. S., 3Dall. 171 22 

Hyde v. Stone, 20 How. 170 197, 238 
H. & St. J. E. E. V. Husen, 95 U. 

S. 465 119, 127, 270 



XX 



TABLE OF CASES CITED. 



I. C. K. R., Stone v., 116 U. S. 

347 128, 178 

Illinois, Moore v., 14 How. 13 235 
Munn v., 94 U. S. 113 126, 268 
Presseri)., IIGU. S. 252 

254 269 
Buggies v., 108 U. S. 526 

178, 269 
W.St. L. & P. Ey. «., 118 

U. S. 557 128, 268, 271 

Spies v., 123 U. S. 131 

209 240 254 
Indseth, Pierce v., 106 U. S. 546 212 
Inman S. S. Co. v. Tinker, 94 U. 

S. 23 25, 67 

Insurance Co., Delmas v., 14. 

Wall. 661 148, 149, 152 

Iowa, Bartemeyer v., 18 Wall. 

129 267 

C, B. & Q. E. E. v., 94 U. S. 

155 126, 178, 268, 269 

County, Havemeyer v., 3 

Wall. 294 47 

Missouri v., 7 How. 660 189, 198 
I. E. C. Co., Ochiltree v., 21 Wall. 

249 151 

Jackson, ^x parte, 96 U. S. 727 11 

Wilcox v., 13 Pet. 498 224, 245 

V. Lamphire, 3 Pet. 280 150 

E. K. v., 7 Wall. 262 24 

J. B. Bank v. Skelly, 1 Bl. 436 

33, 149, 167, 177 
Jennison, Holmes v., 14 Pet. 450 

189, 252, 255 
Jefferson Police Jury, Fisk y., 116 

U. S. 131 146, 154, 159, 179 
Jefferson, The Thomas, 10 Wheat. 

428 46, 47 

Jenners, Peck v., 7 How. 612 234,238 
Jersey Co., Den v., 1 5 How. 426 47 
Jersey City, Provi lent Institu- 
tion v., 113 U. S. 506 240 
Jessup, Tomlinson y., 15 Wall. 454 169 
Jones V. Soulard, 24 How. 41 47 
Scott v., 5 How. 343 146 
Johnson, R. R. v., 15 Wall. 195 13 
Mississippi v., 4 Wall. 498 212 
Nations v., 24 How. 195 240, 246 
Joliffe, Steamship Co. v., 2 Wall. 

450 115, 116 

Johnston, Eosenblatt v., 104 U. S. 

462 29 

Jones, Watson v., 13 Wall. 697 233 
Johnson County, Eiggs v., 6 Wall. 

166 233 

Juilliard v. Greenman, 110 U. S. 

421 3, 12, 13 

Jmnel, Louisiana v., 107 U. S. 

711 220 



Justices, The, v. Murray, 9 Wall. 

274 231, 254 

Kansas, Ames v., Ill U. S. 449 

196, 205, 209 

Foster ?;., 112 U.S. 201 267 

Indians, The, 5 Wall. 737 27 

Mugler v., 123 U. S.623 267 

Kearzey, Edwards v., 96 U.S. 595 146 

Keith V. Clark, 97 U. S. 454 146, 172 

Kelsey, Church v., 121 U. S. 282 

179, 241 
Kenney, Effinger v., 115 U. S. 

566 152 

Kennett, v. Chambers, 14 How. 

38 212 

Kelly V. Pittsburgh, 104 U. S. 78 

20, 226, 240, 254 
Keene, Brown v., 8 Pet. 115 199 

Kentucky Ey. Tax Cases, 115 U. 

S. 321 240 

Patterson v., 97 U. S. 501 269 
Bush v., 107 U. S. 110 

200 241, 242 
Bank of, Briscoe v., 11 Pet. 

257 2, 188, 215, 223 

V. Ohio, 24 How. 66 

190, 191,193, 198, 219 
Bank of, v. Wisler, 2 Pet. 318 223 
Keehler, U. S. ■;;., 9 Wall. 83 189 
Keokuk, Barney v., 94 U. S. 324 

46, 48, 105 
Packet Co. v., 95 U. S. 80 

19, 105, 274 
Ketchum,D'Arcy?;.,ll How. 165 245 
Kendall, Postmaster General, v, 

Stockton, 12 Pet. 527 212 

Keyes v. U. S., 109 U. S. 336 213 
Kearney, Ex parte, 7 Wall. 38 228 
Kilbourn v. Thompson, 103 U. S. 

168 11 

King, W. & W. E. E. v., 91 U. S. 3 152 
Kimball, County of Mobile v., 102 

U. S. 691 40, 90 

Kibbie, Goodtitle v., 9 How. 471 255 
Kinzie, Bronson v., 1 How. 311 153 
Kirapton, Bronson v., 8 Wall. 444 12 
Kirtland v. Hotchkiss, 100 U. S. 

491 18 23 24 

Knowles v. The G. & C. Co.,'l9 ' 

Wall. 58 247 

Knox V. Exchange Bank, 12 

Wall. 379 148 

Knopp, State Bank v., 16 How. 

369 149 

Koontz, B. & O. E. E. v., 104 U. 

S.5 261 

Kohl V. U. S., 91 U. S. 367 11 

Koshkonong v. Burton, 104 U. S. 

668 150, 153 



TABLE OF CASES CITED. 



XXI 



Kountze, Express Co. v., 8 Wall. 

"49 259 

Kring 1 Missouri, 107 U. S. 221 184 

Kreiger, Eandall v., 23 Wall. 137 149 
Krippendorf v. Hyde, 110 U. S. 

276 239 

Lafayette Insurance Co.?;. French, 

18 How. 404 245, 246 

Lange, Ex parte, 18 Wall. 163 

228 229 
Langford v U. S., 101 U. S. 34 ' 2 
Landes v. Brant, 10 How. 348 244 
Lamphire, Jackson v., 3 Pet. 280 150 
Laird, Stuart v., 1 Or. 299 215 

La Grange, Cole v., 113 U. S. 1 20 
Lane County v. Oregon, 7 Wall. 

71 12 

Lammon v. Feusier, 111 U. S. 17 239 
Lawler v. Walker, 14 How. 149 199 
L. C. & C. K. E. V. Letson, 2 How. 

497 223, 259 

League v. De Young, 11 Plow. 185 

146, 150 
Le Bois, U. S. v., 121 U. S. 278 144 
Lear, Arnastrong <v., 8 Pet. 52 212 
Leon V. Galceran, 11 Wall. 185 235 
Legal Tender Cases, 12 Wall. 457 

12 13 274 
Lewis, Siebert v., 122 U. S. 284 ' 160 
Lee, U. S. v., 106 U. S. 196 224 

Leroux V. Hudson, 109 U. S. 468 233 
Letson, L. C. & C. E. E. v., 2 How. 

497 223, 259 

Lewis, Missouri v., 101 U. S. 22 241 
Lehigli Water Co. v. Easton, 121 

U. S. 388 147, 148 

License Cases, 5 How. 504 

108, 109, 267 
License Tax Cases, 5 Wall. 462 

34, 177 
Lionberger v. Eouse, 9 Wall. 468 30 
Liquidation, Board of, v. Mc- 

Comb, 92 U. S. 541 223, 224 
Livingston, County of, v. Dar- 
lington, 101 U. S. 407 20 
V. Storv, 9 Pet. 632 200 
Lindsay, Fowler v., 3 Dall. 411 222 
L. Ins.Co.iJ. French, 18 How. 404 261 
Liverpool Ins Co. v. Mass., 10 

Wall. 566 40, 259, 260, 261, 262 
Livingston v. M. Ins. Co., 6 Cr. 

274 212 

, V. Moore, 7 Pet. 469 182, 183, 254 
Loan Association v. Topeka, 20 

Wall. 655 20 

Lott, Hinson v., 8 Wall. 148 

35, 78, 258 
Lottawanna, The, 21 Wall. 558 

59, 200, 233 



Louisiana, Frederickson v., 23 

How. 445 275 

Nathan v., 8 How. 73 35, 40, 62 
Low V. Austin, 13 Wall. 29 25, 83 
Lord V. S. S. Co., 102 U. S. 541 57 
Lord, The Mayor v., 9 Wall. 4C9 233 
Lowery, Chemung Canal Bank v., 

93 U. 8. 72 258 

Louisiana, Allen v., 103 U. S. 80 274 
Morgan v., 93 U. S. 217 

S3, 118, 155 168 
V. Jnmel, 107U. S. 711 220 

V. Mayor of New Orleans, 

109 U.S. 285 153,159,241 
New York v., 108 U.S. 76 220 
New Hampshire v , 108 U. 

S. 76 198, 220 

V. Pilsbury, 105 U. S. 278 

154, 158, 160 
V. New Orleans, 102 U. S. 

203 150, 154, 180 

Loughborough v. Blake, 5 

Wheat. 317 11,20 

Louisiana Board of Plealth, Mor- 
gan vS.S.Co.w., 118 U.S. 455 19 
Lowry, Erwin v., 7 How. 181 

234, 238 
Louisiana Gas Co. v. C Gas Co., 

il5U. S. 683 172 

Louisiana Light Co., New Orleans 
Gas Co. w., 115 U.S. 650 

146, 172 
Williams t;., 103 U. S. 637 149 
Lowe, F. L. E. E. v., 114 U. S. 

525 27 

L. E. E., E. E. E. ■i;.,13 How. 81 177 
Lucas, Strother v., 6 Pet. 763 212 

Commissioners v., 93 U. S. 

108 241 

Hagan v., 10 Pet. 400 233, 238 

Lull, Nash v., 102 Mass. 60 236 

Luther r. Borden, 7 How. 1 211, 212 

Lynn, Schiver's Lessee ly., 2 How. 

43 _ 245 

Lynham, Ilauenstein v , 100 U. 

S. 483 275 

Lyman, Holyoke Co. v,, 15 Wall. 

.500 170 

L. & N. E. E. V. Palmes, 109 U. 

S. 244 149 

Machine Co. v. Gage, 100 U. S. 

676 35, 78, 258 

Mackin V. U. S , 117 U. S. .•'4S_ 2:^6 
Madison, Marburv v., 1 Cr. 137 

2. 193,205, 212, 274 
Magwire, Col'r., Bailey v., 22 

Wall. 215 177 

Maguire, Traskt).,18 Wall. 391 
" ' 33,155,168 



xxu 



TABLE OF CASES CITED. 



Maguire, N. M. E. E. v., 20 Wall. 

4G 17G 

P. E. E. v., 20 Wall. 36 33, 167 
Madrazzo, Governor, etc, v., 1 

Pet. 110 219, 220 

Marshall v. B. & O. E. E., 16 

How. 314 259 

Maryland, Ward v., 12 Wall. 418 

35, 75. 79, 258 

Martin v. Mott, 12 Wheat. 19 213 

V. Plunter's Lessee, 1 Wheat. 

304 1, 2, 6, 8, 11, 193, 195, 

202, 204, 206, 215, 232 

Marbury v. Madison, 1 Cr. 137 

2, 193,205, 212,274 
Maryland, Brown v., 12 Wheat. 

419 25.40 82,216, 269 

McCulloch v., 4 Wheat. 316 

1,3,8,9, 10, 14, 18,29, 217 
Turner v., 107 U. S. 38 

25, 86, 87 
Mason v. Haile, 12 Wheat. 327 149 
Massachusetts, L. Ins. Co. v., 10 

Wall. 566 40,259, 260,261, 262 
Ins. Co., Livingston v., 6 Cr. 
274 212 

Madrazzo, Ex parte, 7 Pet, 627 220 
Maryland, B. & O. E. E. v., 21 

Wall. 456 19,36,124 

Marigold, U. S. v., 9 How. 560 

11, 235 
Martin v. Waddell, 16 Pet. 367 47 
Matthewson, Satterlee v., 2 Pet. 

380 182, 183 

Mager v. Grima, 8 How. 490 18, 24 
Maguire v. Card, 21 How. 248 

47, 197 
Mayor, The, Waring v., 8 Wall. 

110 85 

Massachusetts, Ehode Island v., 

12 Pet. 657 2, 189, 198, 215, 216 
Maxwell v. Ktewart, 22 Wall. 77 

244, 245, 246 
Maryland, Smith v., 18 How. 71 

47, 48, 254, 255, 268 
Mayor of New Orleans, Louisiana 

v.. 109 U.S. 285 153, 241 

of New York, Miller v., 109 

U. S. 385 99 

of New York, Henderson v., 
92 U. S. 259 36, 69, 70 

Mayhew v. Thatcher, 6 Wheat. 

129 245 

Massachusetts, Beer Co. v., 97 U. 

S. 25 178, 267, 269 

Maryland v. B. & O. E. E., 3 How. 

534 173 

Mayor, The, The Banks v., 7 

Wall. 16 26 

V. Lord, 9 Wall. 409 233 



^Massachusetts, Provident Institu- 
tion v., 6 Wall. 611 26 
Hamilton Co. v.. 6 Wall. 632 26 
Maryland, Corson v., 120 U.S. 

502 35, 77, 258 

Mayor, The, v. Cooper, 6 Wall. 

253 193, 196, 209 

May bury, Slocum v., 2 Wheat. 9 

201, 236, 238 
Master and Wardens of the Port 

of New Orleans, Foster v., 

94 U. S. 246. 120 

McBratney, U. S. v., 104 U. S. 621 274 
McClurg's Lessee, Meigs v., 9 Cr. 

11 224 

McClure, O. & M. E. E. v., 10 

Wall. 511 146, 148 

McCreadv v. Virginia, 94 U. S. 

391 49, 255, 257, 258, 268 

McCullocht'. Marvhind, 4 Wheat. 

316 1, 3, 8,'9, 10, 14, 18,29, 217 
McDowell, Grisar v., 6 Wall. 363 224 
McElmovle v. Cohen, 13 Pet. 312 244 
McElratii v. U. S., 102 U. S. 426 

197, 230 
McConnell, Hampton v., 3 Wheat. 

234 244 

McMillen v. Anderson, 95 U. S. 

37 _ _ 240 

McComb, Liquidation v., 92 U. 

S. 541 223, 224 

McShane, U. P. Ey. v., 22 Wall. 

444 27 

McCracken v. Hayward, 2 How. 

608 153 

McNamee, Wilson v., 102 U. S. 

572 115, 116 

McNeal, Ex parte, 13 Wall. 236 

115, 116, 232 
McConnell, Wallace v., 13 Pet. 

136 237, 238 

McGuire v. The Commonwealth, 

3 Wall. 387 29, 269 

McLean v. Flemming, 96 U. S. 

248 61 

McClurg V. Silliman, 6 Wheat. 

598 • 236 

McMillan v. McNeil, 4 Wheat. 

209 154,155,157 

McNeil, McMillan v., 4 Wheat. 

209 154, 155, 157 

McNulty V. Batty, 10 How. 72 209 
McKim II. Voorhees, 7 Cr. 279 237 
Mclver, Smith v., 9 Wheat. 532 238 
Meigs V. McClurg's Lessee, 9 Cr. 

11 224 

Mercer County, Cowles v., T Wall. 

118 _ 260 

Memphis Gas Light Co. t). Shelby 

County, 109 U. S. 398 23, 33, 176 



TABLE OF CASES CITED. 



XXlll 



Merriwetlier v. Garrett, 102 U. S. 

472 19, 154, 159 

Merchants' Bauk, N. J. Naviga- 
tion Co. v., 6 How. 344 197 
Memphis V. U. 8., 97 U. S. 293 

154, 158, 160 
U. S. v., 97 U. S. 284 179 

Mercantile Bank v. New York, 

121U. S. 138 31 

Mercer, Watson v., 8 Pet. 88 182, 183 
Miller v. Mayor of New York, 109 

U. S. 385 99 

Minor v. Happersett, 21 Wall. 

163 252, 265 

Michigan, Fargo v., 121 U. S. 230 

36, 84, 132, 137 
Missouri, Craig t;., 4 Pet. 411 187 

Cummings v., 4 Wall. 277 

184,185, 186 

Kringv., 107 U. S. 221 184 

V. Lewis, 101 U. S. 22 241 

Wei ton v., 91 U. S. 275 35, 76,258 

Mitchell V. Clark, 1 10 U. S. 333 232 

V. Harmony, 13 How. 114 224 

Mills V. Duryee, 7 Cr. 481 244 

V. Brown, 16 Pet. 525 199 

V. St. Clair County, 8 How. 

581 177 

Michigan, Walling v., 116 U. S. 

446 258 

Middleton v. Mullica Township, 

112 U;S. 433 20 

Miln, City of New York v., 11 

Pet. 103 54,68, 111, 121, 267 
Michigan, Walling v.. 116 U. S. 

446 35, 77 

Mississippi, Stonew., 101 U. S. 814 

178, 269 
Mitchell V. The Commissioners, 

91 U. S. 206 26 

Missouri, Byrne v., 8 Pet. 40 187 

V. Iowa 7 How. 660 189, 198 
Mississippi v. Johnson, 4 W^all. 

475 212 

Mixter, Pacific Nat'l Bankn., 124 

U S 721 236 

M. N. Bank, Tappan v., 19 Wall. 

490 32 

Mobile, Osborn v , 16 Wall. 479 

35, 132 
V. Watson, J 16 U. S. 289 

154,158, 159 
Moore v Greenhow, 114 IT. S. 

338 152 

Mobile County v. Kimball, 102 

U. 8. 691 40, 90 

Moran v. New Orleans, 112 U. S. 

69 36, 66 

Morgan v. Parham, 16 Wall. 471 

36, 64 



Morgan S. S. Co.?'. La. Board of 

Health, 118 U. S. 453 19 

Peete v., 19 Wall. 581 

25,67, 118, 121 
V. Louisiana, 93 U. fe. 217 

33, 118, 155,168 
Morse, Ins. Co. v., 20 Wall. 445 262 
Mott, Martin v., 12 Wheat. 19 213 
Moore, Livingston v., 7 Pet. 469 

182, 183, 254 
V. Illinois, 14 How. 13 235 

Houston v., 5 Wheat. 49 

4, 111, 201, 213, 2.35 
Moor, Veazie v., 14 How. 568 55, 92 
Morris, N. O. v., 105 U. S. 600 179 
Moffat, Cook v., 5 How. 295 154, 157 
Moses Taylor, The, 4 Wall. 411 

59, 197, 201, 203, 204, 235 
Montello, The, 20 Wall. 430 46, 197 
Moultrie, County of, v. R. T. C. S. 

Bank, 92 U. S. 631 154, 159 
M. R. Improvement Co., Sands 

v., 123 U. S. 288 19. 92, 98 

Mumma v. Potomac Co., 8 Pet. 

281 197 

Munn V. Illinois, 94 U. S. 113 

126, 268 
Murphy v. Ramsey, 114 U. S. 15 185 
Aronson v., 109 U. S. 238 232 
Murray v. Charleston, 96 U. S. 

432 34, 172 

The Justices v., 9 Wall. 274 

231,254 
Mullica Township, Middleton v., 

112 U. S. 433 20 

Murray's Lessee r. Hoboken L. 

*& I. Co., 18 How. 272 226, 229 
Mngler v. Kansas, 123 U. S. 623 267 
M. & B. R. R., Cunningham v., 

109 U. S. 446 220 

M. & C. R. R. V. Tennessee, 101 

U. S. 337 180, 181 

M. & M. R. R. V. Rock, 4 Wall. 

177 148, 199 

V. Ward 2 Bl. 485 96 

M. & N. W. R. R., Rice v., 1 Bl. 

358 177 

M. & St. P. R. R. V. Atlee, 94 U. 

S. 179 178 

Nagle, Wright v., 101 U. S. 791 

149, 177 
Nathan v. Louisiana, 8 How. 73 

35, 40, 62 
Nations v. Johnson, 24 How. 195 

240, 245 
National Bank, Ottawa v., 105 U. 

S. 343 20 

Pel ton v., 101 U. S. 1-13 32 

Cummings v., 101 U. S. 677 32 



XXIV 



TABLE OF CASES CITED. 



National Bank v. Commonw'tli, 

9 Wall. 353 28, 30, 33 

V. U. S., 101 U. S. 1 22 

Nashville, Adams v., 95 U. S. 191 31 
Nash V. Lull, 102 Mass. 60 236 

Neal V. Delaware, 103 U. S. 370 253 
Newberry, AUen v., 21 How. 244 

47, 197 
Neff. Pennoyer v., 95 U. S. 714 

227, 239, 44, 245, 246 
Nelson v. St. Martin's Parish, 111 

U. S. 716 154, 158, 160 

New Orleans, U. S. v., 98 U. S. 

381 19 

Cannon v., 20 Wall. 577 

25, 67, 121 
C. & B. Co. v., 99 U. S. 97 . 26 
Water Works, St. T. W. W. 
v., 120 U. S. 64 172 

Nesbit, B. & S. E. K. v., 10 Plow. 

395 182, 183 

Nevada Bank v. Sedgwick, 104 U. 

S. Ill _ 18 

New York, Mercantile Bank v., 

121 U. S. 138 31 

V. Louisiana, 108 U. S. 76 220 
City of, V. Miln, 11 Pet. 103 

54, 68, 111,121,267 
New Hampshire^. Louisiana, 108 

U. S. 76 198, 220 

'Newton v. Commissioners, 100 U. 

S. 548 179 

Neil V. Ohio, 3 How. 720 123 

New Orleans, Davidson v., 96 IT. 

S. 97 226. 240, 254 

Louisiana v., 102 U. 8. 203 

150, 154, 180 
Morani;.,112U.S. 69 36,66 

Wolflf v., 103 U. S. 358 

154, 158, 160 
Gas Co. V. Louisiana Light 

Co., 115 U.S. 650 146,172 
Water Works v. Eivers, 115 

U. S. 674 172 

Fouvergne v., 18 How. 470 197 
Asylum v., 105 U. S. 362 

33, 167, 168 
New York Indians, The, 5 Wall. 

761 ^ _ 27 

P. F. Association v., 119 U. 

S. 110 40, 259, 260, 262, 265 
Miller v., 109 U. S. 385 99 

Nevada, State of, Crandall v., 6 
Wall. 35 

28, 73, 84. 87, 125, 134, 258 
Needles. Chicago Life Ins. Co. v., 

113 U. S. 574 177 

Neilson, Foster v., 2 Pet. 253 274 
New Jersey v. Yard, 95 U. S. 104 

33, 167, 169 



New Jersey v. Wilson, 7 Cr. 64 33, 166 

N. H. & iS. Co. V. Hamersley, 104 

U. S. 1 178, 269 

Nicholson. Osborn v., 13 Wall. 

654 . • 164, 264 

Nichoi, Furman i'., 8 Wall. 44 172 

N. J. Navigation Co. v. M'ch'ts 

Bank, 6 How. 344 197 

N. M. E. E. V. Maguire, 20 Wall. 

46 176 

N. O. V. Morris, 105 U. S. 600 179 

Norton v. Shelby County, 118 U. 

S. 425 193, 274 

North German Lloyd, Commis- 
sioners of Immigration v., 
92 U. S. 269 36, 71 

Norwich Co. v. Wright, 13 Wall. 

104 57 

City of, 118 U. S. 468 57 

Northrop v. Vaughan, 15 Pet. 1 

234, 238 

Nugent V. Bond, 3 How. 426 235 

N. & W. E. E. V. Johnson, 15 

Wall. 195 13 

Ochiltree v. I. E. C. Co., 21 Wall. 

249 151 

Ogden, Gibbons v., 9 Wheat. 1 

8,16,34,40,41,42,44,50, 
86, 100, 108, 117, 123, 215, 216 
V. Saunders, 12 Wheat. 213 

154, 156, 158, 176, 182 
Ohio, Neil v., 3 How. 720 123 

Shields v., 95 U. S. 319 

33, 155, 169 
Kentucky v., 24 How. 66 

190, 191, 193, 198, 219 
L. I. & T. Co. V. DeBolt, 16 

How. 416 147, 149, 177 

Fox v., 5 How. 432 235, 254 

Okely, Bank of Columbia v., 4 

Wheat. 235 231 

Olcotti). TheSupervisors, 16 Wall. 

678 20, 147 

O. Packet Co., Aiken v., 121 U. S. 

444 19 

Oregon, Lane County v., 7 Wall. 

71 112 

Orleans v. Phoebus, 11 Pet. 175 46 
Ortega, U. S. v., 11 Wheat. 467 

196, 205 
Osborne v. County of Adams, 106 

U. S. 181 ; 109 id. 1 20 

V. Mobile, 16 Wall. 479 35, 132 
Pulliam v., 17 How. 471 238 

Osborn v. The Bank of the U. S., 
9 Wheat. 738 
10. 29, 186, 199, 211, 218, 224 
V. Nichdlson, 13 Wall. 654 

146, 264 



TABLE OF CASES CITED. 



XXV 



Otoe, County of, R. E. v., 16 Wall. 

667 20 

Otis, Bos well v., 9 How. 336 239, 245 

Ottawa, Hackett v., 99 U. S. 86 20 
V. National Bank, 105 U. S. 

343 20 

V. Carey. 108 U. S. 110 20 
Ouacliita Packet Co. v. Aiken, 121 

U. S. 444 • 106 
O wings t). Speed, 5 Wheat. 420 

88, 146 

V. Hull, 9 Pet. 607 213, 243 
O. & M. R. E. V. McClure, 10 

Wall. 511 146, 148 

V. Wheeler, 1 Bl. 286 259, 260 

Pace V. Burgess, 92 U. S. 372 81 

V. Alabama, 106 U. S. 583 265 
Packet Co. v. Catlettsburg, 105 

U. S. 559 19, 106 

V. St. Louis, 100 U. S. 423 

19, 23, 106 
V. Keokuk, 95 U. S. 80 

19, 105, 274 
Parkersburg, Transportation Co. 

v., 107 U. S. 691 19, 106 

Palmer, Embry v., 107 U. S. 3 

11, 248 
Palmes, L. & N. E. E. v., 109 

U. S. 244 149 

Patterson v. Kentucky, 97 U. S. 

501 269 

Parham, Morgan?;., 16 Wall. 471 

36, 64 
■Parrish v. Ellis, 16 Pet. 451 200 

Paul V. Virginia, 8 Wall. 168 

40, 41, 256,259, 260, 261, 262 
Parsons v. Bedford, 3 Pet. 433 

200, 230 
Parkinson v. U. S., 121 U. S. 281 226 
Payson, Turnbull v., 95 U. S. 418 248 
Paut V. Drew, 10 How. 218 172 

Parham, Woodruff?)., 8 Wall. 123 

35, 41, 73, 79, 84, 85, 134 
Pacific E. E., Thomson i'., 9 Wall. 

579 28 

Insurance Co. v. Soule, 7 
Wall. 433 22 

Passaic Bridge Case, The, 3 

Wall. [App.] 782 97 

Passenger Cases, The, 7 How. 

283 34, 36, 42, 68, 70, 134 

Patterson, Boom Co. v., 98 U. S. 

403 197 

Payne v. Hook, 7 Wall. 425 197 

Pallas, Hunt v., 4 How. 589 209 

Parks, Ex parte, 93 U. S IS 228 

Packard, Davis v., 7 Pet. 276 236 

Pacific Nat'l Bank v. Mixter, 124 

U. S. 721 236 



Pervear v. The Comm'th, 5 Wall. 

475 _ 29, 254, 269 

Pennsylvania, Carpenter v., 17 

How. 456 23, 24, 182, 183 

Pearson v. Yewdall, 95 U. S. 294 

230, 240, 254 
Penna. College Cases, 13 Wall. 

190 170 

Peck, Fletcher v., 6 Cr. 87 

153, 164, 182, 183, 274 
Peete v. Morgan, 19 Wall. 581 

25, 67, 118, 121 
Pegues, Humphrey v., 16 Wall. 

244 167, 168, 171 

Peik V. C. & N. W. Ey., 94 U. S. 

164 127, 178, 268 

Peniston, U. P. E. E. v., 18 Wall. 

5 28 

Pennoyer v. Neff, 95 U. S. 714 

227, 239, 244. 245, 246 
Penniman'sCase, 103 U. S. 714 149 
Pennsylvania, G. Ferry Co. v., 114 

U. S. 196 36, 41, 65, 100, 103 
Cook v., 97 U. S. 566 25, 40, 83 
•E.Ey.t;.,21Wall.492 34,36,171 
Prigg v., 16 Pet. 539 

12, 193, 252, 255 
People V. Compagnie G. T., 107 

U. S. 59 _ 36, 71, 87 

V. Commissioners, 104 U. S. 

466 35, 62 

Peters, U. S. v., 5 Cr. 115 223, 232 

Perot, U. S. v., 98 U. S. 430 213 

People V. Comm'srs of Taxes, etc., 

94 U. S. 415 32, 33, 155 

Perrine v. C C. Co., 9 How. 192 177 
People, The, v. The Commis- 
sioners, 2 Bl. 620 26 
Pensacola Tel. Co. v. W. U. Tel. 
Co., 96 U. S. 1 

40, 41, 141, 142, 260 
Pennsylvania, Erie Ey. v., 15 

Wall. 282 136 

Butler v.. 10 How. 402 154, 179 
V. Wheeling & Belmont 
Bridge Co., 18 How. 421 

94 123 
Ex parte, 109 U. S. 174 ' 116 

Peale v. Phipps, 14 How. 368 

234, 238 
People V. Weaver, 100 U. S. 539 32 
Permoli v. First Municipality, 3 

How. 589 255 

People V. Commissioners, 4 Wall. 

244 29 3^ 

People, Bradley v., 4 Wall. 459 ' 30 
Pelton V. National Bank, 101 U. 

S. 143 _ 32 

People, University v., 99 U. S. 

309 33, 148, 167, 168 



XXVI 



TABLE OF CASES CITED. 



Pennsylvania, P. & S. S. S. Co. v., 
122 U. S.326 

86,42, 54,72, 84, 105, 132, 138 
Peters, W heaton v., 8 Pet. 591 200 
Pennsylvania, Twitchell v., 7 

. Wall. 321 209, 230, 254 

Peck r. Jenness, 7 How. 612 234, 238 
Pendleton, W. U. T. Co. if., 122 

U. S. 347 143 

Peyroux v. Howard, 7 Pet. 324 46 
P. F. Association v. New York, 
119 U. S. 110 

40, 259, 260, 262, 265 
Phelps V. Holker, 1 Dall. 261 246 
Phden V. Virginia, 8 How. 163 178 
Pliilada., Christ Church v., 24 

How. 300 168 

Gilman v., 3 Wall. 713 

4, 95, 97, 13i, 201 
U. P. Ry. v., 101 U. S. 528 

34, 170 
Phoebus, The Orleans v., 11 Pet. 

175 46 

Philadelphia v- The Collector, 6 

Wall. 720 209 

Phipps, Peale v., 14 How. 368 

234, 238 
Pickard v. P. S. C. Co., 117 U. S. 

34 36, 136 

Pierce v. Indseth, 106 U. S. 546 212 

V. Carskadon, 16 Wall. 234 153 

185, 186 

Piersol, Elliott v., 1 Pet. 328 245 

Pike, County of, Douglass v., 101 

U. S. 677 147 

Pilsburv, Louisiana v., 105 IJ. S. 

278 153,158, 160 

Pittsburgh, Kelly v., 104 U. S. 

78 20, 226, 240, 254 

Bank, Bank of the U. S. v., 9 

Wheat. 904 223 

Bank v. Sharp, 6 How. 301 172 
P.M. S. S.Co., Hays v., 17 How. 

596 36, 64 

Poole V. Fleeger, 11 Pet. 185 189 
Pound V. Turck, 05 U. S. 459 198 
Portwardens, Steamship Co. ■;;., 

6 Wall. 31 36, 66, 67, 120 

Pollard V. Hagan, 3 How. 212 

2, 48, 255 
Potomac Co., Mumma v., 8 Pet. 

281 177 

Preston, Bors v., Ill U. S. 252 205 
Presser v. Illinois, 116 U. S. 252 

254, 269 
Prevost V. Greneaux, 19 How. 1 272 
Providence Bank v. Billings, 4 

Pet. 514 _ 23, 33, 176 

Prigg V. Pennsylvania, 16 Pet. 

539 12, 193, 252, 255 



Provident Institution v. Jersey 

City, H3 U. S. 506 240 

Institution v. Massachusetts, 
6 Wall. 611 26 

Prescott, E. R. v., 16 Wall. 603 27 
P. K. R.v. Maguire, 20 Wall. 36 

33, 167 
Thompson v., 9 Wall. 579 28 

P. S. C. Co., Pickard •«., 117 U. 

S. 34 36, 136 

Tennessee v., 117 U. S. 51 

£6, 137 
P. Telegraph Co. v. W. U. Tele- 
graph Co., 96 U. S. 1 

40,41, 141,142,260 
Polliam V. Osborne, 17 How. 471 238 
P. & S. S. S. Co. V. Pennsylvania, 
122 U. S. 326 
36, 42, 54, 72, 84, 105, 132, 138 

Queen v. Millis, 10 CI. & Fin. 534, 97 
Queensbury v. Culver, 19 Wall. 83 20 
Quincey, Van HofTman v., 4 Wall. 

552 152 

Railroad Companies v. Gaines, 

97 U. S, 697 33, 34, 155, 168, 
171 
Railway Gross Receipts, State 

Tax on, 15 Wall. 284 36 

Ramsey, Murphy v., 114 U. S. 

15 185 

Randall v. Kreiger, 23 Wall. 137 149 

R. R., Dennick v., 1 03 U. S. 11 197 

V. Jackson, 7 Wall. 262 24 

V. Elleman, 105 U. S. 166 173 

Railway Co. v. Whiton, 13 Wall. 

270 197, 259 

Railroad Co. v. Richmond, 96 

U. S. 521 268 

E. R. V. Prescott, 16 Wall. 603 27 
Reclamation District, Hagar v., 

■■ 111 U. S. 701 12, 240 

Reid, U. S. v., 12 How. 361 232 

Reese, U. S. v., 92 U. S. 214 201, 253 
Renaud v. Abbott, 116 U. S. 277 245 
Reid, W. R. R. v., 13 Wall. 264 

33, 167 
Relfe V. Rundle, 103 U. S. 222 263 
Reid, Webster t;., 11 How. 437 246 
R. & G. R. R. v., 13 Wall. 

269 33, 167 

Scholey v., 23 Wall. 331 22 

Removal Cases, The, 100 U. S. 

457 209 

Reynolds v. U. S., 98 U. S. 145 230 

Cooper v., 10 Wall. ."^OS 245, 246 

Dial v., 96 U. S. 340 233 

Rhode Island v. Massachusetts, 12 

Pet. 657 2, 189, 198, 215 



TABLE OF CASES CITED. 



XXVll 



Richmond, Eailroad Co. v., 96 U. 

S. 521 268 

Rice V. M. & N. W. R. R., 1 Bl. 

358 177 

Riaker, Tiernan v., 102 U.S. 123 

35, 80, 258 
Riggs V. Johnson County, 6 Wall. 

166 233 

Rives, Virginia v., 100 U. S. 313 

242, 253 
Rivers, New Orleans Waterworks 

v., 115 U. S. 674 172 

Robbins, Shaw v., 12 Wheat. 369 

156, 158 
Robinson v. Campbell, 3 Wheat. 

212 200 

Rochereau, Dupasseur v., 21 Wall. 

130 249 

Rock, M. & M. R. R. v., 4 Wall. 

177 148, 199 

Rose V. Himely, 4 Cr. 272 212, 245 
Robertson v. Cease, 97 U. S. 646 199 
Rogers v. Burlington, 3 Wall. 654 20 
Rodes, Bronson v., 7 Wall. 229 12 
Rolls County Court v. U. S., 105 

U.S. 733 154,158,160 

Royall ?;. Virginia, 121 U. S. 105 172 
Rouse. Lionberger v., 9 Wall. 468 30 
Robb V. Connolly 111 U. S. 624 

191, 237 
Rosenblatt v. Johnston, 104 U. S. 

462 29 

Robbins v. Shelby County, 120 

U. S. 489 35, 79, 258 

R. R. V. Rock, 4 Wall. 177 148, 199 
R. R. R. V. L. R. R., 13 How. 81 177 
R. T. C. S. Bank, Moultrie, Co. of, 

v., 92 U. S. 631 154, 159 

Russell, Christmas v., 5 Wall. 290 244 
Euggles V. Illinois, 108 U. S. 526 

178, 269 

Runvan v. Coster, 14 Pet. 122 260 

Rundle, Relfe v., 103 U. S. 222 263 

D. & R. C. Co. v., 14 How. 807 47 

R. & Y. R. R. V. Reid, 13 Wall. 

269 33, 167 

Sands v. M. R. Improvement Co., 

123 U. S. 288 19, 92, 98 

Santa Clara County v. S. P. R. R., 

118 U. S. 394 259, 265 

Sandford, Dred Scott v., 19 How. 

393 199, 256 

Sauvinet, Walker v., 92 U. S. 90 

230, 241, 254 
Sampson, Wiswall v., 14 How. 52 

234, 238 
Satterlee v. Matthewson, 2 Pet. 

380 182, 183 

SafFord, Carroll v., 3 How. 441 27 



Saunders, Ogden v., 12 Wheat. 

213 154, 156, 158, 176, 182 
Schottler, S. V. VVaterworks v., 

IIOU. S. 347 178,269 

School Directors, Hepburn v., 23 

Wall. 450 31, 52 

Schurmeier, St. P. & P. R. v., 7 

Wall. 272 47 

Scholery v. Rew, 23 Wall. 331 22 
Scott V. Jones, 5 How. 343 146 

Seabury, Cutting v.^ Spragiie 522 60 
Searight v. Stokes, 3 How, 151 123 
Sedgwick, Nevada Bank v., 104 

U. S. Ill 18 

Seaman, Talbot v., 1 Cr. 1 212 

Shaw V. Robbins, 12 Wheat. 369 

156, 158 
Sheboygan, Gilman v., 2 Bl. 510 

19, 159 
Shelby County, Robbins v., 1-0 

U. S. 489 35, 79, 258 

Norton v., 118 U. S. 425 

193, 274 
Memphis Gas Light Co. v., 

109 U. S. 398 23, 33, 176 

Amy v., 114 U. S. 387 179 

Shepherd, C. D. Co. v., 20 How. 

232 259 

Sharp, Planters' Bank v., 6 How. 

301 172 

Sherlock v. Ailing, 93 U. S. 99 60 
Shields v, Ohio, 95 U. S. 319 

33, 155, 169 
Shriver's Lessee v. Lynn, 2 How. 

43 245 

Shelden, Chicago v., 9 Wall. 50 

33, 147, 167 
Siebert v. Lewis, 122 U. S. 284 160 
Siebold, Ex parte, 100 U. S. 371 254 
Silliman, McClurg v., 6 Wheat. 

598 236 

Sinnot v. Davenport, 22 How. 227 

53, 68, 122, 270 
Singer, U. S. v., 15 Wall. Ill 22 

Skelly, J. B. Bank v., 1 Bl. 436 

33, 149, 167, 177 
Slaughter House Cases, 16 Wall. 

36 250, 25 1 , 256, 264, 265, 269 
Slaughter, Groves v., 15 Pet. 449 

83, 252, 255 
Sloop Betsy, Glass v., 3 Dall. 7 245 
Slocum V. Mayberry, 2 Wheat. 9 

201. 236, 238 
Smales, De Treville v., 98 U. S. 

517 122 

Smith V. Coudry, 1 How. 28 243 

Ennes v., 14 How. 400 212, 245 

Freeborn v., 2 Wall. 160 183 

F. & M. Bank v., 6 Wheat. 

131 154, 156, 157 



XXVlll 



TABLE OF CASES CITED. 



Smitli V. Maryland, 18 How. 71 

47, 48, 254, 255, 268 
White's Bank v., 7 Wall. 

446 57 

Dooly v., 18 Wall. 604 13 

V. Mclver, 9 Wheat. 532 238 

V. Alabama, 124 U. S. 465 268 

Sneed, Tennessee v., 96 U. S. 69 151 

Society for Savings v. Coite, 6 

Wall. 594 26 

Soulard, Jones v., 24 How. 41 47 

Soule, Pacific Insurance Co. v., 7 

Wall. 433 22 

Soon Hing v. Crowley, 113 U. S. 

703 269 

Southard, Waymanw., 10 Wheat. 1 231 
South Carolina v. Georgia, 93 U. 

S. 4 87, 122 

Southern, Hagood v., 117 U. S. 52 219 
Speed, Owings v., 5 Wheat. 420 

^ 88, 146 
Sprague, Hoyt v., 103 U. S. 613 255 
Sprott V. U. S., 20 Wall. 459 189 

S. P. R. R., Santa Clara County v., 

118 U. S. 344 259, 265 

Springer v. U. S., 102 U. S. 586 

22, 228 
Spies «. Illinois, 123 U. S. 137 

209, 240, 254 
Spraige v. Thompson, 118 U. S. 

90 115, 274 

State, Bradwell v., 16 Wall. 130 

257, 265 
Bank v. Knopp, 16 How. 

369 149 

Turnpike Co. v., 3 Wall. 210 177 
Freight Tax, Case of, 15 

Wall. 232 18, 36, 125, 135 

Miller v., 15 Wall. 478 170 

Tax on Rv.Gross Receipts, 15 

Wall. 281 72, 84, 131, 138, 139 
Tonnage Tax Cases, 12 Wall. 
204 25, 66 

Stewart, Maxwells., 22 Wall. 77 

244, 245, 246 
St. Martin's Parish, Nelson v., 

Ill U. S. 716 154, 158, 160 
Stone V. Wisconsin, 94 U. S. 181 178 
V. Mississippi, 101 U. S. 814 

178, 269 
V. F. L. & T. Co., 116 U. S. 

307 128, 178 

V. I. C. R. R., 116 U. S. 347 

128, 178 
Stockdale v. The Ins. Cos., 20 

Wall. 323 183 

St. Clair v. Cox, 106 U. S. 350 

245, 247, 261 
Strauder v. West. Va., 100 U. S. 

303 241, 253 



Stacy V. Thrasher, 6 How. 44 247 
Stanton, Georgia v., 6 Wall. 71 212 
Strother v. Lucas, 6 Pet. 763 212 

Stifle, Drehman v., 8 Wall. 595 151 
Sturges V. Crowninshield, 4 

Wlieat. 122 2, 4, 16, 40, 

111, 146, 149, 153, 154, 155, 
157, 164, 201, 215 
St. Tammany Water Works v. N. 

O. W. Works, 120 U. S. 64 172 
St. Clair Co., Mills t)., 8 How. 581 177 
St. P. & P. R. R. V. Schurmeier, 

7 Wall. 272 47 

Stevens v. Griffith, 111 U. S. 48 147 
Strader v. Graham, 10 How. 93 252 
St. Louis, Packet Co. v., 100 U. 

S. 423 _ 19, 23, 106 

Stanley v. Supervisors, 121 U. S. 

535 32 

Steamship Co. v. Joliffe, 2 Wall. 

450 115, 116 

V. Port Wardens. 6 Wall. 31 

25, 36, 66, 67, 120 
Stuart V. Laird, 1 Cr. 299 215 

Stone, Hyde v., 20 How. 170 197, 238 
St. Lawrence, The, 1 Bl. 522 197 

Stuart, Lessee of Hickey v., 3 

How. 750 245 

Stockton, Postmaster Gen. Ken- 

dalH)., 12 Pet. 527 212 

Story, Livingston v., 9 Pet. 632 200 

Stokes, Searight v., 3 How. 151 123 

Supervisors, Avajv., 11 Wall. 136 233 

V. Durant, 9 Wall. 415 233 

Bank v., 7 Wall. 26 26 

Wadsworth v., 102 U. S. 534 154 

Olcott v., 16 Wall. 678 20, 147 

Stanley t)., 121 U.S. 535 32 

Surget, Ford v., 97 U. S. 694 147, 189 

Suydam v. Broadnax, 14 Pet. 67 

154, 156, 238 
Williamson v., 6 Wall. 723 150 
S. V. Waterworks v. Schottler, 

110 U. S. 347 178, 269 

S. & N. A. R. B.v. Alabama, 101 

U. S. 832 180 

Tabb, Boyce i;., 18 Wall. 546 264 

Taylor v. Ypsilanti, 105 U. S. 60 20 

Conway v., 1 Bl. 603 101, 268 

Terrett »'., 9 Cr. 43 166 

V. Carryl, 20 How. 583 238 

Talbot V. Seeman, 1 Cr. 1 212 

Tappan v. M. N. Bank, 19 Wall. 

490 32 

Tarble's Case, 13 Wall. 397 237 

Taylor, Elmendorf v., 10 Wheat. 

152 243 

Tax Court, Bonaparte v., 104 U. 

S. 592 18, 24 



TABLE OF CASES CITED. 



XXIX 



Telegraph Co. v. Texas, 105 U. 

S. 460 26, 36, 142, 143 

V. W. U. Telegraph Co., 
96 U.S.I 40,41,141,142 

Tennessee v. Davis, 100 U. S. 257 

200, 209 
V. P. S. C. Co., 117 U. S. 51 36, 137 
V. Sneed, 96 U. S. 69 151 

Van Brocklin v., 117 U. S. 

151 27 

M. & C. E. E. ^.,101 U. S. 

337 180, 181 

Farrington v., 95 U. S. 679 167 
Teal V. Felton, 12 How. 284 235 

Terrett ?;. Taylor, 9 Or. 43 166 

Terry v. Anderson, 95 U. S. 628 150 
Godfrey v., 95 U. S. 171 199 
Texas v. White, 7 Wall. 701 

1, 2, 199, 212, 277 
Telegraph Co. v., 105 U. S. 
460 26, 36, 142, 143 

Thatcher, Mayhew v., 6 Wheat, 

129 245 

Thrasher, Stacy v., 6 How. 44 247 
Thomas V. The City of Eichmond, 

12 Wall. 349 
Thompson, Spraigue v., 118 U. S. 

90 115, 274 

Kilbourne v., 103 U. S. 168 11 
V. Whitman, 18 Wall. 457 

245, 247 
Thomson v. P E. E., 9 Wall. 579 28 
Tiernan v. Einker, 102 U. S. 

123 35, 80, 258 

Tinker, In man S. S. Co. v., 94 U. 

S '^SS 25 67 

Tobin,v'icksburg v., 100 U. S. 430 ' 

19, 106 
Tomlinson v. Branch, 15 Wall. 

460 34, 171 

V. Jessup, 15 Wall. 454 169 

Topeka, Loan Ass'n v., 20 Wall. 

655 20 

Trade-Mark Cases, 100 U. S. 82 

41, 61, 274 
Transportation Co. v. Parkers- 

biirg, 107 U. S. 691 19, 106 
V. Wheeling, 99 U. S. 273 

34, 35, 43, 65, 103 
Trask v. Maguire, 18 Wall. 391 

33, 155, 168 
Trapnall, Woodruff «., 10 How. 

190 172 

Trigg V. Drew, 10 How. 224 172 

Trevor, The Hine v., 4 Wall. 556 

59, 197, 235 
Turnpike Co. v. State, 3 Wall. 

^ 210 177 

Tucker v. Ferguson, 22 Wall. 527 

27, 33, 34, 170, 177 



Turek, Pound v., 95 U. S. 459 98 

Turner v. Maryland, 107 U. S. 38 

25 86 87 
Turnbull v. Payson, 95 U. S. 418 248 
Turpin v. Burgess, 117 U. S. 504 82 
Twitchell v. Pennsylvania, 7 

Wall. 321 209, 230, 254 

United States v. Bevans, 3 Wheat. 

337 50, 200 

Boyd ?)., 116 U. S. 616 226 

V. Arrendondo, 6 Pet. 691 275 
V. B. & O. E. E., 17 Wall. 

322 23 

V. Cruickshank, 92 U. S. 542 

201, 251, 253, 254 
V. 43 Gallons of Whiskey, 93 

U. S. 188 144, 275 

V. Fisher, 2 Cr. 358 10 

V. Fox, 94 U. S. 315 255 

V. Hall, 98 U. S. 343 10 

V. Hamilton, 3 Dall. 17 228 

V. Perot, 98 U. S. 430 213 

V. Harris, 106 U. S. 629 

2, 264, 266, 274 
Hyltoni;.,3Dall. 171 22 

Kohl v., 91 U. S. 367 11 

Langford v., 101 U. S. 341 2 

V. Amedy, 11 Wheat. 392 243 
Mackin v., 117 U. S. 348 226 
McElrathz)., 102U.S. 426 

197, 230 
V. McBratney, 104 U. S. 621 274 
V. Marigold, 9 How. 560 11, 235 
Memphis v., 97 U. S. 293 

154, 158, 160 
V. Memphis, 97 U. S. 284 179 
National Bank v., 101 U. S. 

1 22 

V. Peters, 5 Cr. 115 223, 232 

V. Ortega, 11 Wheat. 467 

196, 205 
Eolls County Court v., 105 U. 

S. 733 154, 158, 160 

Eeynolds v., 98 U. S. 145 230 
V. Eeese, 92 U. S. 214 201, 253 
Springer v., 102 U. S. 586 

29 228 
Sprott v., 20 Wall. 459 "' 189 
V. Waddell, 112 U. S. 76 12, 228 
V. Le Bris, 121 U. S. 278 144 
Parkinson v., 121 U. S. 281 226 
V. Singer, 15 Wall. Ill 22 

V. Coombs, 12 Pet. 72 46 

Mtge. Co., Gross «., 108 U. 

S. 477 149, 265 

Fremont v., 17 How. 542 213 
V N. O., 98 U. S. 381 19 

V. Haas, 3 Wall. 407 144 

V. Hudson, 7 Cr. 32 200, 205 



XXX 



TABLE OF CASES CITED. 



PAGE 

United States v. Ooolidge, 1 

Wheat. 415 200 

V. Holliday, 3 Wall. 407 141 

Gordon v., 2 Wall. 561 209 

V. Reid, 12 How. 361 232 

V. Ferrera, 13 How. 40 209 

Bleyew v , 13 Wall. 581 196 

Bridge Co. v., 105 U. S. 470 99 
V. Fox, 95 U. S. 670 185, 200, 201 
V. Keehler, 9 Wall. 83 189 

V. De Witt, 9 Wall. 41 2 0, 267 
University, Head v., 19 Wall. 

526 179 

V. People 99 U. S. 309 

33, 148, 167, 168 
Union Canal Co., Gilfilian v., 109 

U. S. 401 150 

U. P. E. E. V. Peniston, 18 Wall. 

5 28 

U. P. Ey. V. McShane, 22 Wall. 

444 27 

V. Philadelphia, 101 U. S. 

528 34 170 

Urtetiqui v. D'Arbel, 9 Pet. 692 ' 248 

Utah, Hopt i;., 1 10 U. S. 574 185 

Vance ?j. Vance, 108 U. S. 514 150 
Van Brocldin v. Tennessee, 117 

U.S. 151 27 

Van Home v. Dorrance, 2 Dall. 

304 193 

Van Noorden, Capron v., 2 Cr. 

126 199 

Van Hoffman v. Quincy, 4 Wall. 

552 152 

Vaughan v. Northrop, 15 Pet. 1 

234, 238 
Van Allen v. The Assessors, 3 

Wall. 513 29, 30 

Veazie v. Moor, 14 How. 568 55, 92 
Bank v. Fenno, 8 Wall. 533 

10, 22, 23 
Vicksburg v. Tobin, 100 U. S. 430 

19, 106 
Virginia, Phalen v , 8 How. 163 178 
Paul V , 8 Wall. 168 

40, 41, 256, 259, 260, 261,262 
Eoyall v., 121 U. S. 105 172 

Ex parte, 100 U. S. 339 242, 253 
Coupon Cases, 114 U. S. 270 

172, 188, 224, 274 
Cohens v., 6 Wheat. 264 193, 
194, 195, 193, 197, 199, 201, 
215, 216, 222, 209 
V. Eives, 100 U. S. 313 242, 253 
Hollin£rsworth'y.,3Dall. 378 217 
McCready v., 94 U. S. 391 

48, 255, 257, 258, 268 
V. West Virginia. 11 Wall. 39 

189, 198 



Virginia, Webber v., 103 U. S. 

344 29, 35, 76, 258 

Vorhees v. Bank of U. S., 10 Pet. 

449 245 

McKim v., 7 Cr. 279 237 

V. S. & P. E. E., Hamilton v., 

119 U. S. 280 98 

Walling V. Michigan, 116 U. S. 

446 35, 77, 258 

Ward, M. & M. E. E. v., 2 Bl. 485 96 
V. Maryland, 12 Wall. 418 

35,75,79,258 
Wadsworth v. Supervisors, 102 U. 

S. 534 154 

Waddell, Martin v., 16 Pet. 367 47 

U.S. v., 112 U. S. 76 12, 228 

Watson V. Jones, 13 Wall. 679 233 

Warren Bridge, Charles Eiver 

Bridge v., 11 Pet. 420 177 

W^aite V. Dowley, 94 U. S. 527 33 
Wall, Ex parte, 107 U. S. 265 226 
Wallace t;. McConnell, 13 Pet. 136 

237, 238 
Walcot V Diggs, 4 Cr. 179 233 

Walker v. Sauvinet, 92 U. S. 90 

230, 241, 254 

Lawler v., 14 How. 149 199 

V. Whitehead, 16 Wall. 314 153 

Waller, Bigler v., 14 Wall. 297 13 

Waring v. The Mayor, 8 Wall. 

110 85 

V. Clarke, 5 How. 441 86, 197, 201 
Watson V. Mercer, 8 Pet. 88 182, 183 
Mobile v., 116 U. S. 289 

154, 158, 159 
Wardens, etc.. Board of, Coolev v., 

12 How. 299 _ 111, il6, 134 
Board of. Steamship Co. v., 6 
Wall, n 25 

Wales V. Whitney, 114 U S. 564 213 
Wayman v. Southard, 10 Wheat. 

1 231 

Webber v. Va., 103 U. S. 344 

29, 35, 76, 258 
Webster v. Eeid, 11 How. 437 245 
Weber v. Harbor Commissioners, 

18 Wall. 57 47, 48, 255 

Welton V. Missouri, 91 U. S. 275 

35. 76, 258 
Weston V. Charleston, 2 Pet. 449 26 
Western Union Tel. Co., P. Tel. 
Co. v., 96 U. S. 1 

40. 41, 141, 142. 260 
West V. Aurora Citv, 6 Wall. 139 209 
Wells, Ex parte, 18'How. 307 228 
West Virginia, Strauder v., 100 

U. S. 303 241, 253 

Virginia v., 11 Wall. 39 189,198 

Wethered, Bischoff i'., 9 Wall. 812 245 



TABLE OF CASES CITED. 



XXXI 



Weaver, People v., 100 U. S. 539 82 
W. F. Co., C. & A. K. R. v., 119 

U. S. 615 212, 213, 243 

C. & A. K. E. v., 108 U. S. 

18 244 

St. Louis v., 11 Wall. 423 36, 103 
Wheeling, Transportation Co. v., 

99 U. S. 273 54, 35, 43, 65, 103 
& B. Bridge Co., Penna. t'., 
18 How. 421 94, 123 

Wheeler, R. R. v., 1 Bl. 286 259, 260 
Whitehead, Walker v., 16 Wall. 

314 153 

AVhiskey, 43 gallons, U. S. v., 93 

U. S. 188 144, 275 

Whitman, Thompson v., 18 Wall. 

457 245, 247 

White V. Hart, 13 Wall. 646 

146, 152, 264 
Whitton, Ey. v., 13 Wall. 270 

60, 197, 200, 232, 259 
Whitney, Curtis v., 13 Wall. 68 150 
Texas v., 7 Wall. 701 

1,2,199,212,277 
White's Bank v. Smith, 7 Wall. 

446 57 

Wheaton t' Peters, 8 Pet. 591 200 
Whitney,Wales v., 114 U. S. 564 213 
Williamson v. Suydam, 6 Wall. 

723 150 

Wiggins Ferry Co. v. East St. 
Louis, 107 U. S. 365 

34, 35, 41, 43, 66, 102, 170 
Williams v. Louisiana, 103 U. S. 

637 149 

V. Bruffy,96U. S. 176 189 

Williamson v. Berrv, 8 How. 495 245 

Wilson, Ex parte, U 4 U. S. 417 226 

Wilcox V. Jackson, 13 Pet. 498 245 

V. Jackson, IS Pet. 498 224 

Wilson, Cheever v., 9 Wall. 108 244 

V. McNamee, 102 U. S. 572 

115, 116 
Kew Jersey v., 7 Cr. 64 33, 166 
V. B. C. Marsh Co., 2 Pet. 250 

93, 98, 111 
Wisconsin, Hall v., 103 U. S. 5 172 
Wister, Bank of Kentucky v., 2 

Pet. 318 223 

Withers v. Buckley, 20 How 84 

92, 226, 254 



Wisconsin, Stone v., 94 U. S. 181 178 
V. Duluth, 96 U. S. 379 89 

Windley, Bluunt v., 95 U. S. 173 

151,154, 158 
Witherspoon v. Duncan, 4 Wall. 

210 23 

Wise V. Withers, 3 Cr. 331 213 

Withers, Wise v., 3 Cr. 331 213 

Williams v. Benedict, 8 How. 107 

234, 238 
Wiswall V. Sampson, 14 How. 52 

. 234, 238 
Wo Lee v. Hopkins, 118 V. S. 

356 265, 269 

WolflF V. New Orleans, 103 U. S. 

358 154, 158, 160 

Woodruff?'. Trapnall, 10 How. 190 172 
Woolsey, Dodge v., 18 How. 331 193 
Worcester v. Georgia, 6 Pet. 515 

134, 144, 209 
Woodruff t'. Parham, 8 Wall. 123 

35, 41, 73, 79, 84, 85, 134 
W. E. E. V. Eeid, 13 Wall. 264 

33, 167 
Wright V. Nagle, 101 U. S. 791 

^ 149,177 

Norwich Co. v., 13 Wail. 104 57 
W. St. L. & P. Ey. V. Illinois, 

118U. S. 557 128,268,271 
Wurts V. H.^geland. 114 U. S. 606 240 
W. U. T. Co. V. Pendleton, 122 

U. S. 347 143 

W. & B. Bridge Co., Penna. v., 18 

How. 421 99, 123, 200 

W. & St. p. E. R. V. Blake, 94 U. 

S. 180 178 

W. & W. E. E. V. King, 91 U. 

S.3 152 

Yarhorough, Ex parte, 110,U. S. 

651 11, 12, 228 

Yard, New Jersey v., 95 U. S. 104 

33, 167, 169 
Yaker, Haver v., 9 Wall. 321 275 
Yewdall, Pearson v., 95 V. S. 294 

230. 240, 254 
Yick Wo V. Hopkins, 118 U. S. 

356 265, 269 

Ypsilanti, Taylor v., 105 U. S. 60 20 

Zacharie, Boyle v., 6 Pet. 635 154, 156 



CHAPTEK I. 

THE RELATION OF THE STATES TO THE UNITED STATES 
AND TO EACH OTHEE. 

1. The sanction of the Constitution. / 

2. The indissolubility of the Union. 

3. The autonomy of the states. 

4. The delegated character and limited powers of the government of the 

United States. 

5. The federal supremacy. 

6. The restraints upon the states. 

7. The force and effect of the preamble to the Constitution. 

1. The Constitution, though framed by a convention, 
whose members were elected by the legislature of the 
states, was ratified in the several states by conventions 
whose members were elected by the people of their 
respective states. It derives its whole authority from 
that ratification, and when thus adopted, it was of com- 
plete obligation and it thenceforth bound the states, and 
the citizens of each state.^ 

2. The union of the states under the Constitution was, 
from and after the ratification of that instrument, indis- 
soluble, and, until an amendment be adopted, authoriz- 
ing a dissolution of the union, or a withdrawal of a state 
from the union, it is not possible for a state, without 
violating the constitutional compact, to withdraw from 
the union, or to deprive itself of its rights as one of the 
United States, or to emancipate itself from the restraints 
imposed by the Constitution on freedom of state action.^ 

1 Martin v. Hunter's Lessee, 1 Wheat. 304, 324; McCuUoch v. Maryland, 4 
Wheat. 316, 404. 

^ Texas v. White, 7 Wall. 700; White v. Hart, 13 Wall, 646; Keith v. 
Clark, 97 U.S. 454. 

1 



2 THE AUTONOMY OF THE STATES. 

3. The thirteen original states were existing govern- 
ments when the Constitution was ratified ; and, states 
admitted to the union under the Constitution have as 
regards the United States and the other states, in all 
respects in which the effect of that instrument has not 
been changed by amendment, the same rights, powers, 
and obligations as the thirteen original states.^ There- 
fore, in so far as the states are not controlled by 
the expressed, or implied, restrictions contained in the 
Constitution of the United States, they may severally 
exercise all the powers of independent governments.^ 
The states, though united under the sovereign authority 
of the Constitution, are, so far as their freedom of action 
is not controlled by that instrument, foreign to, and 
independent of each other.^ 

4. The government of the United States, in its relation 
to the several states and to the citizens of those states, 
is one of delegated and limited powers, which are, 
expressly or by necessary implication, granted by its 
written Constitution.'^ The Constitution has created a 
government, divided into three departments, legislative, 
executive, and judicial. As the chief function of the 
executive department, apart from its participation in 
legislation by the exercise of a qualified veto, is that 
of administering the laws of Congress, and as the primary 
duty of the judicial department is that of expounding 
the Constitution and the laws in their application to 
subject-matters of judicial cognizance, either civil or 

1 Pollard V. Hagan, 3 How. 212 ; Texas v. White, 7 Wall. 700. 

^ Amendments to the Constitution, articles ix and x ; Martin v. Hunter's 
Lessee, 1 Wheat. 304, 325; Sturges v. Crowninshield, 4 Wheat. 193; Texas v. 
White, 7 Wall. 700, 721. 

3 Buckner v. Findley, 2 Pet. 586, 590 ; Ehode Island v. Massachusetts, 12 
Pet. 722. 

* Martin v. Hunter's Lessee, 1 Wheat. 304, 826; Marbury v. Madison, ICr. 
137, 176; Briscoe v. Bank of Kentucky, 11 Pet. 317; U.S. v. Harris, 106 U. S. 
627 ; Langford v. U. S., 101 U. S. 34. 



THE FEDEEAL SUPEEMACY. O 

criminal, it is obvious, that the powers conferred by the 
Constitution upon the government of the United States 
are, in the main, powers of legislation. The powers 
granted by the Constitution to the government of the 
United States are either expressed or implied. The 
expressed powers are tliose which are specifically stated 
in the Constitution. The implied powers are those which 
authorize the use of appropriate means, which are con- 
sistent with the letter and spirit of the Constitution, for 
the accomplishment of legitimate ends, which are not 
prohibited, and which are within the scope of the Con- 
stitution.^ The powers granted by the Constitution to 
the United States are subject to certain expressed excep- 
tions, which are contained in the 9th section of arti- 
cle I of the Constitution, and in the first eleven of its 
amendments. 

5. Article VI of the Constitution declares, that "this 
Constitution and the laws of the United States, which 
shall be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority of 
the United States, shall be the supreme law of the land; 
and the judges in every state shall be bound thereby, 
anything in the Constitution or laws of any state to the 
contrary notwithstanding." By force of this consti- 
tutional provision, the government of the United States, 
as Marshall, C. J., said in McCulloch v. Maryland,^ 
" though limited in its powers, is supreme within its 
sphere of action," and, to the extent, and in the exercise, 
of the powers delegated to it, it is a sovereignty.^ 

6. The restraints imposed by the Constitution upon 

^ Infra, chapter n ; Constitution, art. i, sec. 8 ; McCulloch v. Maryland, 4 
Wheat. 421. 

^ 4 Wheat. 316. 405. 

' Alexander Hamilton's argument of 23 February, 1791, as to the constitu- 
tionality of a national bank. 3 Lodge's Hamilton's Work, 181 ; JuUiard v. 
Greenman, 110 U.S. 421. 



4 EESTEAINTS ON THE STATES. 

the states are either expressed or implied. The ex- 
pressed restraints are those which are specifically stated 
ill the Constitution. The implied restraints are those 
which result from the express grant by the Constitution 
of certain powers, whose nature, or the terms of whose 
grant, require that they should be exclusively exercised 
by the United States.^ The expressed restraints, 
are, first, those which affect the relations of the 
several states to other states, foreign and domestic; 
and, second, those which have reference to the rela- 
tions between the states and their citizens, and which 
limit the exercise by the states of their powers 
of legislation. The expressed restraints of the first 
class include the prohibition of treaties, alliances, 
confederations, agreements, or compacts with another 
state or with a foreign power; the obligation not to issue 
letters of marque and reprisal, or to maintain troops or 
ships of war in times of peace, or to engage in war un- 
less actually invaded or in such imminent danger as 
will not admit of delay,; the requirements that full faith 
and credit shall be given in each state to the public acts, 
records, and judicial proceedings of every other state, 
and that the citizens of each state shall be entitled to 
all the privileges and immunities of citizens of the sev- 
eral states, and that fugitives from justice shall be sur- 
rendered from one state to another. The expressed 
restraints of the second class include the prohibition 
of the grant of titles of nobility, of the coinage of 
money, of the emission of bills of credit, of the estab- 
lishment of any legal tender other than gold and silver 
coin, of the imposition of duties of tonnage and duties 
on imports or exports, excepting such as may absolutely 
be necessary for the execution of inspection laws; of 

^ Sturges V. Crowninshield, 4 Wheat. 122, 193 ; Houston v. Moore, 5 id. 49 ; 
Gilman v. Philadelpuia, 3 Wall. 730. 



IMPLIED EESTEAINTS. O 

the rehabilitation of slavery or involuntary servitude, 
€xcept as a punishment for crime ; of the deprivation 
of any person of life, liberty, or property without due 
process of law ; of the denial to any person of the equal 
protection of the law ; of disfranchisement on account 
of race, colour, or previous condition of servitude, or for 
any cause, except for participation in rebellion or other 
crime, of any of the male inhabitants of a state who are 
twenty-one years of age and citizens of the United 
States; of "the election or the appointment to office 
under a state of any person, who, having previously 
taken an oath as a member of Congress, or as a member 
of any state legislature, or as an executive or judicial 
officer of any state, to support the Constitution of the 
Uuited States, shall have engaged in insurrection or 
rebellion against the same, or given aid or comfort to 
the enemies thereof," and whose disabilities shall not 
have been removed by a vote of two-thirds of each house 
of Congress, of the assumption or payment of any debt 
or obligation incurred in aid of insurrection or rebellion 
against the United States, or of any claim for the loss 
or emancipation of any slave ; and of the enactment of 
bills of attainder, ex post facto laws, or laws impairing 
the obligation of contracts. 

The implied restraints limit the action of the states 
with regard to taxation, the regulation of commerce, 
and the personal and property rights of their citizens, 
and of the citizens of other states. 

Many of the restraints are so clear in their terms, 
and so little require judicial construction, that no 
question has ever been raised as to their legal effect, 
but others of those restraints have been frequently _ 
subjects of litigation. For the purposes of this 
treatise it is unnecessary to make further reference 
to the restraints with regard to the issue of letters 



6 THE PREAMBLE. 

of marque or reprisal, the maintenance of troops or 
ships of war in time of peace, the engagement in 
war unless actually invaded or in such imminent danger 
as will not admit of delay, the grant of titles of nobility, 
or the coinage of money. As, happily for the peace 
and prosperity of the country, slavery is of past, and 
not of present, interest, it is not deemed necessary to 
refer to that subject further than to note that the 
XIII Amendment has abolished it in every form, and 
forbidden its re-establishment. 

7. The preamble to the Constitution declares that 
" We, the people of the United States, in order to form 
a more perfect union, establish justice, insure domestic 
tranquillity, provide for the common defense, promote 
the general welfare, and secure the blessings of liberty 
to ourselves and our posterity, do ordain and establish 
this Constitution for the United States of America."' 
That the true significance of that declaration may be 
understood, it must be remembered that the people, 
whose ratification of the instrument gave it its legal 
validity were citizens of independent states, which had 
been theretofore bound together in a confederation, and 
which were thenceforth to be united under a govern- 
ment which, though limited in its action by the reserva- 
tion to the several states of all powers not delegated to 
the United States, should yet be suj^reme within its 
defined bounds.-^ 

Therefore, the government created by the Constitu- 
tion is, to the extent of the powers vested in that gov- 
ernment, national in its character, and, by force of the 
rights reserved to the states, it is, also, a league of 
sovereign and independent states ; and every citizen of 
each state, while owing allegiance to his state in all 
matters not controlled by the powers granted to the 

1 Martin v. Hunter's Lessee, 1 Wheat. 304, 325, 



THE PREAMBLE. / 

United States, owes also a paramount allegiance to the 
United States in all that is made by the Constitution 
of federal obligation. In view of this dual, and yet 
undivided, allegiance due by those who are citizens of 
the United States and also citizens of a state, it was, in 
the hour of its formation, and it has ever since been, 
essential to the right administration of the government 
of the United States under the Constitution that there 
should be a clear appreciation of the complex character 
of that government, and a careful maintenance of the 
balance of power as between the government of the 
United States and the governments of the several states. 



CHAPTER 11. 

THE IMPLIED POWERS. 

8. The necessity of their existence. 

9. Their constitutional recognition. 

10. The test of the relation of the means to the ends. 

11. Illustrations of the exercise of the implied powers. 

12. The legal tender question, 

13. The possible scope of the legal tender cases as authorities. 

8. The Constitution was not framed to meet only the 
exigencies of tlie period of its formation, nor does it 
purport to be a code, which with minute detail pre- 
scribes all that may be done and all that may not be 
done by Congress in the execution of the powers speci- 
fically granted.^ As- Mr. Webster said in his argument 
in Gibbons v. Ogden,^ and as Marshall, C. J., repeated 
in his judgment in that cause,^ the Constitution enumer- 
ates, but does not define, the powers which it grants, 
nor does it prescribe the means which may rightfully be 
used in executing those powers, and without whose use, 
the grant of the powers would be nugatory.* Therefore, 
if the Constitution contained no clause recognizing the 
existence of powers which are subsidiary or incidental 
to the powers expressly granted, it would be impossible 
to avoid the conclusion that there is an implied grant of 
such incidental powers, for otherwise the powers ex- 
pressly granted would be practically inoperative. Nor 

^ McCulloch V. Maryland, 4 Wheat. 406 ; Martin v. Hunter's Lessee, 1 id. 
326. 

2 6 Webster's Works 9. 

3 9 Wheat. 189. 

4 McCulloch V, Maryland, 4 Wheat. 407. 



CONSTITUTIONAL RECOGNITION. 9 

is the force of this conclusion at all affected by the X 
Amendment, for while that amendment in terms forbids 
the exercise by Congress of any undelegated power, it 
does not forbid the exercise of powers which are dele- 
gated by implication.^ 

9. Section 8 of article I of the Constitution declares 

that " the Congress shall have power to make 

all laws which shall be necessary and proper for carry- 
ing into execution the foregoing powers, and all other 
powers vested by this Constitution in the government 
of the United States or in any department or officer 
thereof." But it may be said, who is to conclusively de- 
termine whether or not any statute is, within the terms 
of the Constitution, "necessary and proper for carrying 
into execution" a power granted by the Constitution to 
Congress? If Congress can so determine, obviously 
any and every act of Congress must be regarded as 
constitutional. If in the exercise of judicial jurisdic- 
tion the final determination of that question is to be 
made by the court, what principles are to guide the 
judges in coming to a conclusion, and by what test are 
they to determine the relation between the means and 
the end, and the degree of the necessity and the pro- 
priety of the use of the particular means ? 

10. The result of the authorities, so far as they afibrd 
an answer to this question, can be best stated by the 
quotation of a famous dictum originated by Mr. Ham- 
ilton ^ and paraphrased by Chief Justice Marshall in the 
judgment in McCulloch v. Maryland,^ and which, in its 
final perfected form, is as follows: "let the end be 
legitimate, let it be within the scope of the Constitution, 
and all means which are appropriate, which are plainly 

^ Mr. Hamilton's argument as to a national bank. 3 Lodge's Hamilton's 
Works 183 ; McCulloch v. Maryland, 4 Wheat. 406. 

^ Argument as to a national bank. 3 Lodge's Hamilton's Works 190. 
3 4 Wheat. 421. 



10 IMPLIED POWERS, 

adapted to the end, wliicli are not prohibited, but con- 
sist with the letter and spirit of the Constitution, are 
constitutional." ^ This dictum means that Congress may, 
in the execution of a power expressly granted, adopt 
any means which (1) are not expressly prohibited by 
the Constitution, nor (2) inconsistent with the letter 
and spirit of the Constitution, and which are (3) not 
the only possible means, nor an absolutely or indispen- 
sably necessary means, but an appropriate and plainly 
adapted means, to the attainment of an end authorized 
by the Constitution. From this it follows, that if the 
relation of the means to the end be shown to exist, and 
if the use of the particular means be not expressly or 
impliedly forbidden by the Constitution, the question 
of the degree of its appropriateness, of its greater or 
less adaptation, and of its relative or absolute necessity 
is' purely political, and the determination of Congress 
with regard thereto is binding upon the courts. 

11. Under the doctrine of the implied powers, it has 
been held that Congress may enact statutes creating 
banking corporations as fiscal aids to the government f 
imposing upon national and state banks a tax upon the 
amount of the notes of state banks paid out by them f 
giving priority to the United States as a creditor in the 
distribution of the assets of a bankrupt f declaring that 
the embezzlement by a guardian of his ward's pension 
granted by the United States is a crime against the 
United States f taxing lands in the District of Colum- 



^ The opposing view, sustaining the strict construction of the Constitution, 
is, perhaps, most strongly put by Mr. Jefferson. Memoirs, vol. iv, pp. 197, 
207, 526 ; 4 Elliot's Debates 609. 

2 McCulloch V. Maryland, 4 VV^heat. 316; Osborn v. The Bank of the United 
States, 9 id. 738. 

3 Veazie Bank v. Fenno, 8 Wall. 533. 
* U. S. V. Fisher, 2 Cr. 358. 

«* U. S. •;;. Hall, 98 U. S. 343. 



ILLUSTRATIONS. 11 

bia;^ declaring it to be a crime to bring into the United 
States from a foreign place, counterfeit coins forged in 
the similtude of coins of the United State f constitut- 
ing a judicial system to carry into execution the judicial 
powers vested by the Constitution in the United States f 
regulating the carriage of the mails and determining 
what may be transported and what must be excluded 
from the mails ;^ punishing for contempt others than 
members of Congress f protecting citizens of the United 
Statfes in the exercise of the rights of suffrage at elec- 
tions for members of Congress f authorizing a limited 
intercourse on prescribed conditions with the enemy in 
time of war ;^ prescribing the effect to be given in state 
courts to judgments and decrees rendered in courts of 
the United States f authorizing the issue by courts of 
the United States of writs of habeas corpus ad subjicien- 
dum in cases of restraint of personal liberty under the 
process of state courts issued in violation of rights 
claimed under the Constitution or laws of the United 
States f authorizing the removal to the courts of the 
United States of causes depending in state courts and 
involving questions of Federal cognizance ;^° exercising 
the right of eminent domain with regard to land within 
the bounds of a state and held in private ownership ;^^ 
in order to protect purchasers under the homestead laws 



^ Loughborough v. Blake, 5 Wheat. 317. 

* The United States v. Marigold, 9 How. 560. 
3 Ahlemant;. Booth, 21 How. 506, 521. 

* Exparte Jackson, 96 U. S. 727. 

^ Anderson v. Dunn, 6 Wheat. 204 ; sed. cf. Kilbourn v. Thompson, 103 tJ^ 
S. 168. 

« Ex parte Yarbrough, 110 U. S. 651. 

^ Hamilton v. Dillin, 21 Wall. 73. 

8 Embry v. Palmer, 107 U. S. 3. 

» Exparte Eoyall, 117 U. S. 241 ; Exparte Fonda, ibid. 516. 
*" Martin v. Hunter's Lessee, 1 Wheat. 304, 349. 
" Kohl V. The United States, 91 U. S. 367. 



12 IMPLIED POWEES. 

of lands belonging to the United States but situated 
within the limits of a state, punishing those who con- 
spire to intimidate such purchasers and drive them away 
from the land so purchased/ and prohibiting, under 
penalties, officers of the United States from requesting, 
giving to, or receiving from any other officer money or 
property, or other things of value, for political pur- 
poses.^ 

12. It has also been held that Congress may issue a 
paper currency and declare that that currency shall be a 
legal tender in payment of debts. Until in 1862 the 
financial needs of the government in carrying on a war 
for the suppression of the rebellion rendered it, in the 
opinion of Congress, necessary that the treasury notes 
of the United States should be made a legal tender in 
the payment of debts, neither statesmen nor jurists had 
asserted that Congress had, under the Constitution, the 
power of making anything but gold or silver coin a legal 
tender. The acts of Congress of 25 February, 1862 ; 
11 July, 1862, and 3 March, 1863,' declared that the 
notes issued thereunder should be " lawful money and 
a legal tender in payment of all debts, ]3ublic and pri- 
vate, within the United States, except duties on imports, 
etc." Under these acts it has been decided that neither 
taxes imposed by state authority,^ nor private obliga- 
tions payable by their terms in gold or silver coin,^ are 

^ United States v. Waddell, 112 U. S. 76. 

2 Ex parte Curtis, 106 U. S. 371 ; Stat. 15 Aug., 1876, c. 287, sec. 6. 

For further illustrations of the implied powers of legislation which Con- 
gress may exercise, see the judgments of Story, J., in Prigg v. Penna., 16 
Pet. 619; of Strong, J., in The Legal Tender Cases, 12 Wall. 457, 535; of 
Gray, J., in Juilliard v. Greeman, 110 U. S. 421, 444, and of Miller, J., in Ex 
jparteYarhrough, 110 U. S. 658. 

3 12 Stat. 345, 532, 709. 

* Lane County v. Oregon, 7 Wall. 71 ; Hagar v. Eeclamation District, 111 
U. S. 701. 

^ Bionson v. Ehodes, 7 Wall. 229 ; Butler v. Horwitz, ibid, 258 ; Bronson 
v. Kimpton, 8 id. 444. 



LEGAL TENDER. IS" 

debts within the terms of the acts of Congress dis- 
chargeable by payment in legal tender notes. In Hep- 
burn i;.Griswold/ the court held that the Legal Tender 
Acts applied to debts contracted before as well as ta 
debts contracted after the enactment of those statutes, 
and that, so far as they applied to debts contracted be- 
fore their passage, the statutes were unconstitutional, but 
in the Legal Tender Cases ^ Hepburn v. Gris wold was 
overruled, so far as regards the second branch of the 
proposition laid down in it, and the constitutionality of 
the Legal Tender Acts was sustained, the ground of 
decision being that the power to impress the notes of 
the government with the quality of legal tender, though 
not expressed in the Constitution, was " necessary and 
proper for carrying into execution " the express powers 
to " coin money," "to regulate the value thereof," " to 
pay the debts," " to borrow money," " to raise and sup- 
port armies," and " to provide and maintain a navy ;" that 
the Constitution does not expressly prohibit the issue of 
legal tender notes by the United States ; that their issue 
is not inconsistent with the letter or the spirit of the 
Constitution, and that the end being constitutional and 
the means being appropriate, the degree of its appropri- 
ateness is subject to legislative, and not judicial, deter- 
mination. The Legal Tender Cases are followed and sup- 
ported by Dooley v. Smith,^ Bigler v. Waller,^ N. & 
W. R. K. V. Johnson,^ and Juilliard v. Greeman,^ in 
the last of which cases it was held, that the power to 
make treasury notes a legal tender exists in time of peace 
as well as in time of war, and that legal tender notes 
when redeemed by the Treasury and reissued under the 
Act of 31 May, 1878, retain their legal tender quality. 

1 8 Wall. 603. ^ 14 id. 297. 

2 12 Wall. 457. • » Ibid. 195. 

3 18 Wall. 604, « 110 U. S. 421. 



14 IMPLIED POWERS. 

If tlie question were not concluded by authority, and 
if it were open to examination on principle, it would 
be difficult of solution, and those who have studied it 
the most thoroughly would most hesitate to dogmati- 
cally state a conclusion either for or against the 
constitutionality of the Legal Tender Acts. The Con- 
stitution does not expressly authorize, nor prohibit, 
the enactment of such statutes by Congress ; it does 
expressly forbid the states to coin money, emit bills of 
credit, or make anything but gold and silver coin a 
legal tender ; it makes the government of the United 
States a sovereignty, whose powers are, it is true, enumer- 
ated, but which is none the less, within the limits of 
those powers, a sovereignty, to whose control are in- 
trusted "the sword and the purse, all the external re- 
lations, and no inconsiderable portion of the industry 
of the nation,"^ and which in the execution of its great 
powers is entitled to use the appropriate means ; it for- 
bids the states, but it does not forbid the United States, 
to impair the obligation of contracts ; and it expressly 
empowers the United States "to coin money," and "to 
regulate the value thereof." It seems to me, as Mr. 
Justice Holmes has said,^ that the controversy really 
turns on the construction of the last clause quoted. 
The government's promissory note, payable on demand, 
is, if it be not a legal tender, nothing more than an 
evidence of indebtedness on the part of the govern- 
ment, and as such assignable by the original creditor to 
other persons, and its issue is as plainly authorized by 
the power to borrow money as is the issue of govern- 
ment bonds ; but when the government undertakes to 
impress on that promissory note the quality of a legal 
tender in satisfaction of the antecedently contracted 

1 Per Marshall, C. J., McCulloch v. Maryland, 4 Wheat. 407. 

2 4 Am. Law Rev. 768 : 1 Kent's Com. 254, Ed. 1873. 



LEGAL TENDER. 15 

debts of those who are not parties to the transaction of 
borrowing between the government and its original 
creditor, the note is made to be sometliing more than an 
evidence of indebtedness, and it then becomes " money," 
for it not only circulates in fact, but it performs those 
oflSces which " money " only can perform ; that is, it 
not only serves as a medium of exchange and a measure 
of values, but it also is the efficient means of a com- 
pulsory legal discharge of a debt. Various things that 
are not " money " may perform one or more of these 
offices, but it is " money " alone which can discharge 
all of them. Now, if the government, when it bor- 
rows, or pays its debts, or makes its purchases, can give 
to its creditor that which has no intrinsic value, but 
which that creditor can compel his creditor to receive 
in satisfaction of an antecedent debt, it is somewhat 
difficult to see how or why the delivery of that thing 
of no intrinsic value as the equivalent for materials pur- 
chased by the government, or money loaned to the 
government, or as the legal discharge of a debt due by 
the government, will not greatly facilitate borrowing, 
purchases, and payments by the government. From 
this it would seem to follow that the issue of legal ten- 
der notes, however unwise in statesmanship, is a plainly 
adapted means to the end of raising and supporting 
armies, providing and maintaining a navy, borrowing 
money, and paying the debts of the United States. 
The use of that means is not prohibited expressly. 

It is not prohibited impliedl}'", unless the implication 
of a prohibition can be deduced from the specific grant 
of power to " coin money." If that grant means that 
Congress may issue a metallic currency p-nd make that 
a legal tender, certainly the force of the maxim, ex- 
pressio unius est exclusio alter ius, converts that limited 
grant of power over the currency into an implied pro- 



16 IMPLIED POWEES. 

hibition of the impression of the legal tender quality 
on notes. If, on the other hand, the word " money," 
in the constitutional sense of the term, means only, as 
Professor Thayer has argued,^ a medium of exchange 
which does not involve the idea of a legal tender, the 
power to coin money does not expressly authorize the 
issue of a metallic legal tender, nor does it impliedly 
forbid the issue of a paper legal tender. Of course, the 
same conclusion must be reached, if the word " coin" 
does not mean to stamp metal discs, but means only to 
issue a currency of any material. In support of that 
view, Mr. McMurtrie has said,^ that the Constitution 
was framed by men who were versed in the technical 
terms of English law, and that in English law the phrase 
"to coin money" meant to issue a currency of any mate- 
rial and to give to that currency all the qualities of a cir- 
culating medium. But it is settled that the Constitution 
is to be judicially construed as the act, not of the con- 
vention which framed it, but of the people who ratified 
it, and that in construing it, its words are to be read in 
their natural sense,^ departing from and varying by 
construction the natural meaning of the words only 
where different clauses of the instrument bear upon 
each other and would conflict, unless the words were 
construed otherwise than by their natural and common 
import.* Applying to the Constitution these principles 
of construction, there is certainly some force in the view 
that the power to " coin money," whatever it may have 
been intended to accomplish, expressly authorizes the 
issue of metallic " money," and therefore impliedly 
forbids the issue of paper "money." In view of these 

^ 1 Harvard Law Eev. 83. 

2 Observations on Mr. George Bancroft's Plea for the Constitution, pp. 20 
et seq. 

3 Gibbons v. Ogden, 9 Wheat. 1. 

* Sturges V. Crowninshield, 4 Wheat. 122. 



LEGAL TENDER. 17 

conflicting arguments, it may well be said that, on 
principle and apart from authority, the legal tender 
question is one of difficulty, on which there may well 
be an honest difference of opinion, without liability, on 
the one side or the other, to a just imputation of either 
ignorance of constitutional law or moral perversity. 
The power of Congress to create a national bank was 
quite as bitterly controverted in the early days of the 
Kepublic, yet few, if any, now doubt that the power 
exists. 

13. If Congress have an implied power to issue a le- 
gal tender currency as a means to the end of borrowing 
money for and paying the debts of the United States, 
and if the express power to " coin money " is to be 
construed as an authorization of the issue of a metallic 
legal tender currency and an implied prohibition of 
the issue of a paper legal tender currency, it inevitably 
follows that the Legal Tender cases are an authority for 
the proposition, of possibly wide application, that no 
express grant of power to the United States to accom- 
plish any end in any definite way can avail to prevent 
the attainment of that end in any other way, if permis- 
sion to use that other way be implied in and deducible 
from any other express grant of powers, 



CHAPTEE III. 

TAXATION. 

14. Taxation defined and limited. 

15. Taxation by the United States. 

16. Direct taxation. 

17. The requirement of uniformity. 

18. Exemption of state agencies from taxation by the United States. 

19. Charges which are not taxes exempt from constitutional restraints. 

20. Taxation by the states. 

21. The expressed restraints upon state taxation. 

22. The implied restraint upon state taxation resulting from the federal 

supremacy. 

23. Taxation of national banks. 

24. State taxation as affected by the prohibition of the impairment of 

the obligation of contracts. 

25. State taxation as affected by the grant to Congress of the power of 

regulating commerce. 

14. Taxation is the compulsory exaction by a govern- 
ment, in the exercise of its sovereignty, of a payment 
of money or surrender of property by any person, natu- 
ral or corporate, who, or whose property so taxed, is 
subject to the sovereign power of that government.^ 
Taxation operates upon real property and uj^on tangible 
personal property by reason of its situs or presence 
within the territory of the taxing power.^ It operates 
upon choses in action by reason of the subjection 
of the owner thereof to the jurisdiction of the gov- 
ernment imposing the tax.^ Every possible exac- 
tion of money or property by a government from 

1 The State Freight Tax, 15 Wall. 277 ; McCulloch v. Maryland, 4 Wheat. 
420. 

2 Mager v. Grima, 8 How. 490 ; Coe v. Errol, 116 U. S. 557. 

3 Bonaparte v. Tax Court, 104 U. S. 592 ; Kirtland v. Hotchkiss, 100 U. S. 
491 ; Nevada Bank v. Sedgwick, 104 U. S. 111. 



CHARGES NOT TAXES. 19 

those who are subject to its jurisdiction is not a t^x; 
thus, a duty of so much per passenger, imposed by the 
United States in the exercise of tlie power to regulate 
commerce on owners of vessels bringing passengers 
from foreign ports into ports of the United States, in 
order to raise a fund to mitigate the evils incident to 
immigration, is " not a tax or duty within the meaning 
of the Constitution ;"^ for, as Miller, J., said in the judg- 
ment in that cause,^ " the money thus raised, though 
paid into the treasury, is appropriated in advance to the 
uses of the statute, and does not go to the general sup- 
port of the government. It constitutes a fund raised 
from those who are en2;ao;ed in the transportation of 
those passengers, and who make profit out of it, for the 
temporary care of the passengers whom they bring 
among us and for the protection of the citizens among 
whom they are landed." On the same principle a 
charge made by a state for facilities furnished by it, 
directly or indirectly, for the movement of commerce, 
in the form of improved water ways,^ or wharves,* or 
railways,^ or a charge for quarantine examination, can- 
not be said to be a tax.^ The power of taxation is 
vested in the legislative department of the government,''' 
but it may be delegated by states to political subdivi- 
sions, such as counties and municipalities,* and a state 

1 The Head Money Cases, 112 U. S. 580. 

2 p. 595. 

3 Huse V. Glover, 119 U. S. 543 ; Sands v. M. E. Improvement Co., 123 id. 
288. 

* Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 id. 423 ; 
Vicksburg v. Tobin, id. 430; Packet Co. v. Cattlesburg, 105 id. 559 ; Trans- 
portation Co. V. Parkersburg, 107 id. 69; O. Packet Co. v. Aitken, 121 
id. 444. 

s B. & O. E. E. V. Maryland, 21 Wall. 456. 

^ Morgan v. Louisiana, 118 U. S. 455. 

■f Merriwetlier v. Garret, 102 U. S. 472. 

^ Gilman v. Sheboygan, 2 Bl. 510 ; United States v. New Orleans, 98 
U. S. 381. 



20 " TAXATIOIS-. 

may determine the bounds of a municipality and pre- 
scribe its rate of taxation.^ By whomsoever exercised,, 
or to whomsoever delegated, the power can only be 
exercised for public purposes. Taxes, therefore, can- 
not be imposed in aid of enterprises strictly private, 
such as the establishment of manufactories^ or of 
private grist mills f but when the purpose is public, 
though not directly connected with the administration 
of government, taxes may rightfully be laid to aid in 
its accomplishment, as in the cases of state reform 
schools f grist mills, required by statute to grind for 
all customers on payment of certain tolls ;^ the improve- 
ments of water powers of rivers for general purposes f 
the payment of bounties to volunteer soldiers in time of 
war;' the establishment of railways.^ When bonds, 
though issued in aid of private purposes, on their face 
appear to have been issued for public purposes, they are 
valid and enforcible in the hands of bona fide holders 
for value and without notice.^ 

15. The |)Ower of taxation vested in the United States 
is coextensive with the territory of the United States, 
and it is operative in the District of Columbia,^" in the 
territories, and, to the extent of the constitutional grant, 
in all of the states. 



1 Kelly V. Pittsburgh, 104 U. S. 78. 

2 Loan Association v. Topeka, 20 Wall. 655 ; Parkersburg v. Brown, 106 
U. S. 487 ; Cole v. La Grange, 113 id. 1. 

8 Osborne V. County of Adams, 106 U. S. 181, 109 id. 1. 
* County of Livingston v. Darlington, 101 U. S. 407. 

5 Burlington v. Beasley, 94 U. S. 310. 

6 Blair v. Cuming County, 111 U. S. 363. 

T Middleton v. Mullica Township, 112 U. S. 433. 

^ Rogers v. Burlington, 3 Wall. 654 ; Queensbury v. Culver, 19 id. 83 ; 
Taylor v. Ypsilanti, 105 U. S. 60 ; Olcott v. The Supervisors, 16 Wall. 678 ; 
E. R. V. Otoe, ihid. 667. 

9 Hackett v. Ottawa, 99 U. S. 86 ; Ottawa v. National Bank, 105 id. 343 j 
Ottawa V. Carey, 108 id. 110, 118. 

10 Loughborough v. Blake, 5 Wheat. 317. 



FEDEKAL TAXATION". 21 

Section 8 of article I of the Constitution declares 
that " the Congress shall have power to lay and collect 
taxes, duties, imposts, and excises, to pay the debts and 
provide for the common defense and general welfare of 
the United States ; but all duties, imposts, and excises 
shall be uniform throughout the United States." At 
one period in the history of the country political parties 
were at issue as to the construction to be given to 
this section of the Constitution, the Federalists con- 
tending that the section granted in express terms three 
substantive and independent powers, namely, (1) to lay 
and collect taxes, duties, imposts, and excises, (2) to 
pay the debts, and (3) to provide for the common 
defense and general welfare of the United States ; and 
the Democrats asserting that the section granted but 
one substantive power, that to lay and collect taxes, 
duties, imposts, and excises, and limited the exercise of 
that power to the purpose of paying the debts and pro- 
viding for the common defense and general welfare of 
the United States. The Federalist view was open to 
the objection that a power to legislate for the common 
defense and general welfare of the United States would 
authorize Congress to do anything and everything, and 
would render superfluous the delegation of other 
express powers of legislation in the same section ; but 
the Democratic view, however sound in theory, could 
never be judicially affirmed, for as Congress has admit- 
tedly some power of taxation, a court, looking, as it is 
bound to look, not at the question of expediency but 
solely at the question of power, could never determine 
an act of Congress imposing a tax to be unconstitutional 
because it was intended for some purpose other than 
that of paying the debts and providing for the common 
defense and general welfare of the United States. That 
restraint, therefore, upon the congressional power of 



22 DIEECT TAXES. 

taxation, if it be a restraint, is of moral, and not of legal, 
sanction. 

16. Section 9 of article I of tlie Constitution declares 
that, " no capitation, or other direct tax, shall be laid, 
unless in proportion to the census or enumeration here- 
inbefore directed to be taken." " Direct " taxes are 
capitation taxes, and taxes on real property, as, for in- 
stance, the tax imposed on land by the Act of 6 Febru- 
ary, 1863.^ Neither taxes laid on " carriages for the 
conveyance of persons,"^ nor on personal incomes,^ 
nor on distilled spirits,^ nor succession duties on the 
" devolution of title to real estate,"^ nor taxes on the 
notes of state banks paid out by national banking as- 
sociations,^ nor taxes on the receipts of insurance com- 
panies from premiums and assessments,^ are direct taxes, 
but all such taxes are imposts or excises. The require- 
ment that direct taxes must be laid " in proportion to 
the census or enumeration " is not violated by the statu- 
tory imposition of a penalty for non-payment of the 
tax.^ 

17. The only constitutional requirement with regard 
to imposts and excises is, that they " shall be uniform 
throughout the United States," and that requirement is 
satisfied, when the tax operates with the same ejffect in 
all places where the subject of taxation is found, though 
that subject be not equally distributed in all parts of the 
United States.^ 

18. The United States cannot, however, tax the 

1 12. Stat. 640. 

2 Hylton V. U. S., 3 Dall. 171. 

2 Springer v. U. S., 102 U. S. 586. 

* U. S. V. Singer, 15 Wall. 111. 

^ Scholey v. Keed, 23 Wall. 331. 

6 Veazie Bank v. Fenno, 8 Wall. 533 ; National Bank v. U. S., 101 U. S. 1. 

' Pacific Insurance Company v. Soule, 7 Wall, 433. 

8 De Treville v. Smalls, 98 U. S. 517. 

9 The Head Money Cases, 112 U. S. 580. 



STATE TAXATION. 23 

' agencies of a state, as, for instance, the salary of a 
judicial officer of a state^ nor the revenue of a munici- 
pal corporation derived from its loan of capital to a 
railway.^ 

19. The duty on the transportation of passengers by 
sea from foreign countries imposed by the United 
States in the exercise of the power of regulating com- 
merce, not being in its nature a tax, is not subject to 
the constitutional restrictions on the exercise of the 
power of taxation,^ and the same view has been taken 
of the tax imposed by the United States on the circulat- 
ing notes of state banks for the purpose of preventing 
the circulation of any other than national bank notes.^ 

20. A state may, so far as it is not restrained by the 
Constitution, tax all persons, natural or corporate, and all 
property, real or personal, within its territory and sub- 
ject to its sovereignty, and may regulate, in the exercise 
of legislative discretion, the manner of levying and col- 
lecting its taxes,^ and the United States cannot, either 
by legislative or judicial action, afford any relief against 
*' state taxation, however unjust, oppressive, or onerous," 
so long as that taxation " does not entrench upon the 
legitimate authority of the Union, or violate any right 
recognized or secured by the Constitution of the United 
States.'"^ 

Under the general rule which permits a government 
to tax all persons and property within its jurisdiction, 
the states may impose a succession duty on the devolu- 

1 The Collector v. Day, 11 Wall. 113. 

2 U. S. V. B. & O. E. R., 17 Wall. 322. 

3 The Head Money Cases, 112 U. S. 580. 
* Veazie Bank v. Fenno, 8 Wall. 533. 

^ Witherspoon v. Duncan, 4 Wall. 210. 
/ « Providence Bank v. Billings, 4 Pet. 563 ; St. Louis v. Ferry Co., 11 Wall. 
423; The State Tax on Foreign Held Bonds, 15 id. 300; Kirtland ?;. Hotchkiss 
100 U. S. 491, 498 ; Memphis Gas Co. v. Shelby County, 109 id. 398 ; Car- 
penter V. Pennsylvania, 17 How. 456. 



24 STATE TAXATION. 

tion of title to real estate from their citizens to alien 
non-residents ;^ they may tax goods and chattels which 
are actually within the state, when assessed for taxation, 
though owned by a non-resident ; ^ and, for purposes of 
taxation, the situs of a debt being the residence of the 
creditor, the state may include in the taxable property 
of a resident so much of the registered public debt of 
another state as such resident may hold, although the 
debtor state may either exempt it from taxation or 
actually tax it.^ On the same principle a state may 
tax her resident citizens for debts due to them by a 
non-resident and secured by his bond and also by his 
deed of trust or mortgage of real estate situated in 
another state.^ As until the period of distribution 
arrives, the law of a decedent's domicile attaches to his 
personal property, that property is subject to a state 
collateral inheritance tax, though bequeathe^ by his 
will to non-resident legatees;'^ But the laws of a state 
can have no extra territorial effect, and, therefore, a 
state cannot, as a means of taxing corporate bonds 
held by non-residents, authorize the corporation to 
retain from the interest due on its bonds the amount of 
the tax.^ Nor can a state tax in the hands of a non- 
resident holder corporate bonds issued under a mort- 
gage of a railway formed by the consolidation of cor- 
porations, incorporated by the state, and other corpora- 
tions incorporated by another state, and encumbering 
by a consolidated and non-severable lien property 
which is not within the jurisdiction of the taxing state.'' 

^ Mager v. Grima, 8 How. 490. 

2 Coe V. Errol, 116 U. S. 517. 

3 Bonaparte v. Tax Court, 104 U. S. 592. 

4 Kirtland v. Hotchkiss, 100 U. S. 491. 

^ Carpenter v. Pennsylvania, 17 How. 456. 

fi Case of the State Tax on Foreign Held Bonds, 15 Wall. 301. 

1 E. R. V. Jackson, 7 Wall. 262. 



IMPLIED EESTKAINTS. 25 

21. Section 10 of article I of the Constitution de- 
clares, that "no state shall, without the consent of the 
Congress, lay any imposts or duties on imports or 
exports, except what may be absolutely necessary for 
executing its inspection laws ; and the net produce of 
all duties and imposts, laid by any state on imports or 
exports, shall be for the use of the treasury of the 
United States; and all such laws shall be subject to the 
revision and control of the Congress. No state shall, 
without the consent of the Congress, lay any duty of ton- 
nage." The nature and effect of the restrictions upon 
the taxing power of the states imposed by these consti- 
tutional provisions are more fully discussed in Chapter 
IV, and it is suf&cient to say in this connection that a 
state cannot require importers of foreign goods by the 
bale or package and wholesale vendors of such goods 
to pay a license fee ;^ nor can a state impose an ad 
valorem tax on imported goods remaining in their origi- 
nal cases in the hands of the importer;^ nor can a 
state tax an auctioneers' sales of imported goods for 
account of the importers;^ but a state may prohibit 
the exportation of tobacco grown within its territory, 
save after inspection and on payment of a tax.* A 
state cannot tax ships upon their tonnage.^ 

22. The supremacy of the United States under the 
Constitution impliedly limits to some extent the exer- 
cise by the states of the power of taxation. Thus, a state 
can not tax the official salary of an officer of the United 
States, as, for instance, an officer in the revenue marine 

1 Brown v. Maryland, 12 Wheat. 419. 

2 Low V. Austin, 13 Wall. 29. 

^ Cook V, Pennsylvania, 97 U. S. 566. 

* Turner v. Maryland, 107 U. S. 38. 

^ State Tonnage Tax Cases, 12 Wall. 212 ; Steamship Co. v. Board of War- 
dens, 6 Wall. 31 ; Pectev. Morgan, 19 id. 581 ; Cannon v. New Orleans, 20 id. 
577 ; I. S. S. Co. v. Tinker, 94 U. S. 238. 



26 STATE TAXATION. 

service ;^ nor can a state tax a telegraph company upon 
messages sent by officers of the United States on public 
business f nor can a state authorize municipal taxation 
of the bonds issued by the government of the United 
States for money loaned to it f nor can a state tax the 
notes of the United States;^ nor can a state tax so 
much of the capital of a state bank as is invested in 
the bonds of the United States, that capital being as- 
sessed either at its actual value,'' or at a valuation equal 
to the amount paid in, or secured to be paid in.^ But 
a court will not aid, by the exercise of its equitable 
powers, a party who, for the purpose of evading state 
taxation of his money on deposit, makes a temporary 
investment of that money in the notes of the United 
States.' A corporation claiming an exemption from 
state taxation by reason of the investment of its surplus 
funds in the legal tender notes of the United States has, 
of course, the burden of proving the fact on which it 
rests its claim for exemption.^ A state tax of a cer- 
tain percentage of the total amount of the deposits on 
a given day,^ or of the average amount of the deposits 
for a fixed period^*^ of a saving fund society chartered 
by the state, and a state tax of a certain percentage 
upon the excess of the market value of the shares of 
the capital of a corporation chartered by a state over 
and above the value of its real estate and machinery^^ 

1 Dobbins v. The Commissioners of Erie Co., 16 Pet. 435. 

2 Telegraph Co. v. Texas, 105 U. S. 460. 

3 Weston V. Charleston, 2 Pet. 449 ; The Banks v. The Mayor, 7 Wall. 16. 
* Bank v. Supervisors, 7 Wall. 26. 

^ The People v. The Commissioners of Taxes, 2 Black 620. 

6 The Bank Tax Case, 2 Walh 200. 

' Mitchell V. The Commissioners, 91 U. S. 206. 

8 C. & B. Co. V. New Orleans, 99 U. S. 97. 

** Society for Savings v. Coite, 6 Wall. 594. 

10 Provident Institution v. Massachusetts, 6 Wall. 611. 

" Hamilton Co. v. Massachusetts, 6 Wall. 632. 



PUBLIC LANDS. 27 

are in each case, a tax on the franchise and not on the 
property of the corporation, and the corporation cannot 
claim exemption from such taxation by reason of the 
investment, in the case of the saving funds, of their 
deposits, and in the case of the other corporations, of 
their capital and assets in the bonds of the United 
States. A state cannot tax lands held in severalty by 
members of an Indian tribe and protected by treaties 
between the United States and the tribe.^ A state 
cannot tax public lands of the United States, though 
granted to a railway, but for which patents have not 
been issued, nor costs of survey paid, but from and 
after the vesting of an equitable title in any person the 
lands are subject to state taxation, though the costs of 
survey have not been paid.^ Lands granted by act of 
Congress to a state, to be held by it to aid in the con- 
struction of a railway, though not taxable by the state 
when held by it as trustee, are taxable by it after their 
conveyance to the railway,^ and, of course, in the case 
of lands ceded by a state to the United States for the 
construction of a railway, with an express reservation 
of the state's right of taxation, the state may lawfully 
exercise that right,* but land within a state, which, 
under laws of Congress for the collection of taxes due 
to the United States, has been sold for non-payment of 
such taxes, and at the sale thereof purchased by the 
United States and afterwards sold by the United States 
to a third party, or redeemed by the owner, is exempt 
from state taxation during the period of federal owner- 
ship thereof^ Although thei* title to land remain in 

1 The Kansas Indians, 5 Wall. 737 ; The New York Indians, ibid. 761. 

2 U. P. R. R. V. McShane, 22 Wall. 444 ; E. E. v. Prescott, 16 WaU. 603 ; 
Carroll v. Saflford, 3 How. 441. 

3 Tucker v. Ferguson, 22 Wall. 527. 
* F. L. E. R. V. Lowe, 114 U. S. 525. 

s Van Brocklin v. Tennessee, 117 U. S. 151. 



28 STATE TAXATION. 

the United State, ore dug therefrom under a mineral 
claim is, as the personal property of the claimant, sub- 
ject to state taxation.^ The exemption of federal 
agencies from state taxation is dependent, not on the 
fact of the agency, nor on the character of the agents, 
nor on the mode of their appointment, but on the effect 
of state interference in depriving the agent of power to 
serve the government of the United States, or in 
hindering the agent in the efficient exercise of that 
power.^ A state may, therefore, tax the property, real 
and personal, of a railroad, which has been chartered 
by act of Congress, is subject to a lien securing its debt 
to the United States, and is used as a federal agency for 
the transportation of mails, soldiers, government sup- 
plies, and munitions of war;^ and, it would seem, on 
the principle of that case, that a state may tax the 
property of any federal agency, wherever such taxation 
does not impair the efficiency of the agency in the 
performance of its duty to the government of the 
United States. The federal supremacy forbids a state 
to so tax the transit of passengers through the state by 
the ordinary modes of travel, as to impede their ap- 
proach to the seat of government of the United States, 
the ports of entry through which commerce is con- 
ducted, and the various federal offices in the states.* 
The supremacy of the United States does not involve 
an exemption from state taxation of property which 
has been acquired by the exercise of an exclusive privi- 
lege granted by the United States, when there is no re- 
lation of agency between the United States and the 
grantee, thus letters patent, granted by the United 

1 Forbes v. Gracey, 94 U. S. 762. 

2 U. P. E. E. V. Peniston, 18 Wall. 5 ; "National Bank v. The Common- 
wealth, 9 id. 353; Thompson v. P. E. E., id. 579. 

3 U. P. E. E. V. Peniston, 18 Wall. 5. 

« Crandall v. State of Nevada, 6 Wall. 35. 



NATIONAL BANKS. 2^ 

States, do not exempt from state taxation the tangible 
property in which the invention or discovery is em- 
bodied.-*^ Nor does a license granted, on payment of 
a license fee, by the United States under its Internal 
Revenue Statutes to a wholesale liquor dealer in a 
state exempt the dealer, or his business, or his goods 
from state control, regulation, or taxation.^ 

23. A state cannot tax the operations of banks in-* 
corporated by the government of the United States as- 
fiscal agencies.^ Nor can a state tax the assets of aa 
insolvent national bank in the hands of a receiver 
appointed under the provisions of the national banking 
laws."^ Of course, when Congress licenses state taxa- 
tion of agencies of the government of the United States, 
such taxation is permissible within the limits imposed 
by the terms of the license ; ^ thus in the case of 
national banks, state taxation is by the 41st section of 
the Act of 3 June, 1864,^ permitted as to the shares in 
any bank, when "included in the valuation of the per- 
sonal property of the owner or holder of such shares, 
in assessing taxes imposed by authority of the state 
within which the association is located," .... "sub- 
ject only to the restrictions, that the taxation shall not 
be at a greater rate than is assessed upon other moneyed 
capital in the hands of individual citizens of such state, 
and that the shares of any national banking association 
owned by non-residents of any state shall be taxed in 
the city or town where the bank is located, and not 

1 Webber v. Virginia, 103 U. S. 344. 

^ McGuire v. The Commonwealth, 3 Wall. 387 ; Pervear v. The Common- 
wealth, 5 id. 475. 

3 McCulloch V. The State of Maryland, 4 Wheat. 316 ; Osborne v. The 
Bank of the U. S., 9 id. 738. 

* Rosenblatt v. Johnston, 104 U. S. 462. 

5 Van Allen v. The Assessors, 3 Wall. 573 ; People v. The Commissioners,, 
4 id. 244. 

6 15 Stat. 34, Rev. Stat. Sec. 5219. 



30 STATE TAXATION. 

elsewliere. Tlie states may, therefore, tax sharehold- 
ers in national banks within the limits of this license,^ 
without regard to the investment of all or any part of 
the capital of the banks in United States securities. 
The National Bank Act of 3 June, 1864,^ had imposed 
a further restriction on state taxation of national bank 
shares, declaring that such tax " shall not exceed the 
rate imposed upon the shares in any of the banks 
organized under the authority of the state," but in the 
re-enactment of this statute in 1868,^ and in the Re- 
vised Statutes,"* this condition was omitted. Under the 
Act of 1864 it was held that a state could not tax shares 
in national banks, when it taxed the capital of state 
banks, exempting so much thereof as was invested in 
the bonds of the United States, and failed to tax the 
shares of state banks.^ It was also held that the limi- 
tation upon disparity of state taxation imposed by the 
Act of 1864 is not overstepped by a state which, having 
only two banks of issue and circulation, and having by 
•contract bound itself not to tax these banks beyond a 
certain limit, but having numerous banks of deposit, 
which do not issue circulation, taxes generally and 
equally all shares of stock in banks and incorporated 
companies doing business in the state.*^ The terms of 
section 5219 of the Revised Statutes show clearly that 
Congress did not intend to curtail the taxing power of 
the states over national bank shares as entities distinct 
from the capital of the banks, and as the property of 
persons subject to state jurisdiction, but that it was in- 

^ National Bank v. The Commonwealth, 9 Wall, 353 ; People v. Commis- 
sioners, 4 id. 244 ; Van Allen v. The Assessors, 3 id. 673. 

2 13 Stat. 111. 

3 15 Stat. 34. 
* Sec. 5219. 

5 Van Allen v. The Assessors, 3 Wall. 57 ; Bradley v. The People,4 id. 459. 
^ Lionberger v. Eouse, 9 Wall. 468. 



NATIOISTAL BANKS. 31 

tended to guard the national banks against unfriendly 
discrimination by the states in the exercise of that tax- 
ing j^ower.^ The phrase " moneyed capital " includes 
capital employed in national banks and capital em- 
ployed by individuals for the making of profit by its 
use, but it does not include capital in the hands of a 
corporation.^ Therefore, the exemption from state 
taxation of some but not all of the moneyed capital in 
the state is not a discrimination against national bank 
shares within the terms of the license ; as, for instance, 
in the case of exemption of "all mortgages, judgments, 
recognizances, and moneys owing upon articles of agree- 
ment for the sale of real estate;"^ or of deposits in sav- 
ings banks> shares in trust companies, and shares in 
other moneyed or stock corporations chartered by the 
state and deriving an income or profit from the use of 
their capital or otherwise.^ Nor is there any inequality 
of taxation or unfriendly discrimination as against 
national bank shares, in the exemption by a state of 
that which it cannot lawfully tax, such as, shares 
owned by its residents in the capital stock of for- 
eign corporations,^ or in the exemjotion of that which 
is not a subject of taxation by the United States, such 
as the bonds of a municipal corporation created by the 
state;® but where a very material part of the other 
moneyed capital of a state in the hands of individual 
citizens within the state is exempted from state taxation, 
the state cannot tax the shares of national banks."^ 



^ Adams v. Nashville, 95 U. S. 19 ; Mercantile Bank v. New York, 121 U. 
S. 138. 

2 Mercantile Bank v. New York, 121 U. S. 138. 

3 Hepburn v. The School Directors, 23 Wall. 480. 
* Mercantile Bank v. New York, 121 U. S. 138. 

5 Mercantile Bankt;. New York, 121 U. S. 138, 162. 

6 Mercantile Bank v. New York, 121 U. S. 138, 162. 
' Boyer v. Boyer, 113 U. S. 689. 



32 STATE TAXATION. 

State statutes taxing personal property, including 
national bank shares, and permitting the party taxed 
to deduct his just debts from the valuation of his per- 
sonal property other than national bank shares, tax 
such shares at a greater rate than other moneyed capi- 
tal, and, therefore, are not effective under the terms of 
the license given by Congress ;^ but in the case of a 
national bank shareholder, who has no just debts to 
deduct, the taxing law is valid and operative.^ A state 
may, under the act of Congress, tax the shares of 
a bank located within its jurisdiction without regard 
to the non-resident or resident ownership of such 
shares,^ and the shares may be assessed for purpose of 
state taxation at their market value, though that exceed 
their par value.* But state taxation of national bank 
shares must be uniform and equal, and when a system 
of valuation for taxation purposes intended to operate 
unequally is adopted by the state authorities, whose 
duty it is to make the assessment, equity may properly 
interfere, on payment of the proper tax, to, enjoin the col- 
lection of the illegal excess.^ But where a state has pro- 
vided a mode for the correction of error in the assessment 
of property for purposes of taxation, a party, aggrieved 
by an over- valuation of his property, cannot maintain 
an action at law to recover the alleged illegal excess of 
taxes paid by him, for the official action of the revising 
authority is judicial in character, and cannot be collat- 
erally impeached.^ A state may lawfully require a 

^ People V. Weaver, 100 U. S. 539 ; Supervisors v. Stanley, 105 id. 305 ; 
Hills V. Exchange Bank, id. 319 ; Evansville Bank v. Britton, id. 322. 

^ Supervisors v. Stanley, 105 U. S. 305. 

3 Tappan v. M. JST. Bank, 19 Wall. 490. 

* Hepburn v. The School Directors, 23 Wall. 480 ; People v. Commissioners 
of Taxes, 94 U. S. 415. 

5 Cummings v. M. National Bank of Toledo, 101 U. S. 153 ; Pelton v. Na- 
tional Bank, 101 U. S. 143 ; People v. Weaver, 100 U. S. 539. 

6 Stanley v. Supervisors, 121 U. S. 535. 



COIiTTRACTUAL EXEMPTION. 33 

national bank to act as the agent of the state in collect- 
ing from the shareholders of the bank the tax imposed 
by the state within the limits permitted by the act of 
Congress.^ A state may also, under a penalty for his 
ijon-performance of the duty, require a cashier of a 
national bank to furnish to the state authorities a list 
of the names and respective holdings of the sharehold- 
ers of his bank.^ 

24. The constitutional prohibition of the enactment 
by the states of laws impairing the obligation of con- 
tracts affects to some extent the exercise by the states 
of the power of taxation. While, as a general rule, the 
states may, in the exercise of legislative discretion, 
either tax property or exempt it from taxation, yet con- 
tracts of exemption from state taxation, not in terms 
contravening federaP or state* constitutional prohi- 
bitions, and contained in corporate charters ^ or stipu- 
lated by express agreement,^ if supported by an ade- 
quate consideration, constitute contracts so binding upon 
the state, that their obligation is not to be permitted to 
be impaired by a subsequent legislative repeal of the 
charter, or by an imposition of a rate of taxation incon- 
sistent with the state's contract."^ But there cannot be 
implied from the grant of a charter an exemption of 
the corporate franchise or property from state taxa- 
tion,^ and the imposition in a charter of a specific form 
or rate of taxation is not, in the absence of an express 

^ National Bank v. The Commonwealth, 9 Wall. 353. 

2 Waite V. Dowley, 94 U. S. 527. 

^ People V. Commissioners of Taxes, 94 U. S. 415. 

* K. E. Co. V. Gaines, 97 U. S. 697 ; Trask v. Magwire, 18 Wall. 391 ; Mor- 
gan V. Louisiana, 93 U. S. 217 ; Shields v. Ohio, 95 id. 319. 

5 J. B. Bank v. Skelly, 1 Bl. 436. 

^ New Jersey v. Wilson, 7 Cr. 64 ; New Jersey v. Yard, 95 U. S. 104. 

' J. B. Bank v. Skelly, 1 BI. 436 ; W. E. E. v. Eeid, 18 Wall. 264; E. & 
G. E. V. Same, ibid. 269 ; Chicago v. Sheldon, 9 id. 50 ; P. E. E. v. Magwire, 20 
id. 36 ; University v. People, 99 U. S. 309 ; Asylum v. New Orleans, 105 id. 362 

8 Providence Bank v. Billings, 4 Pet. 575 ; M. G. L. Co. v. Shelby County, 
109 U. S. 398 ; Tucker v. Ferguson, 22 Wall. 527. 



S4 STATE TAXATION. 

contract of exemption from other taxation, to be con- 
strued as an implied exemption from such other taxa- 
tion,^ and contracts of exemption from state taxation, 
when expressly made, are to be strictly construed.^ A 
municipal corporation cannot, by the exercise of a 
statutory power of taxation, diminish the interest paya- 
ble to the holder of a funded obligation of the munici- 
pality under the terms of the bond.^ The subject of 
exemption by contract from state taxation is more fully 
discussed in Chapter V. 

25. The constitutional grant to Congress of the 
power of regulating " commerce with foreign nations, 
and among the several states, and with the Indian 
tribes " also affects to some extent the exercise by the 
states of the power of taxation, but the states are not 
prohibited from taxing either the instrumentalities, or 
the subjects, of foreign or interstate commerce, provided 
that such taxation be imposed on those instrumentali- 
ties and subjects as component parts of the mass of 
property in the state, or by reason of the citizenship of 
their owners as subjects of the sovereignty of the state, 
and provided also, that that, which is in form taxation, 
be not in substance a regulation of, or a restraint upon, 
foreign or interstate commerce.^ In accordance with 
this distinction, a state may tax ships and ferry boats 
as the personal property of their owners, where either 
the owner, by reason of his residence, or the property 
because of its situs is subject to the taxing power of 

1 The Delaware E. E. Tax, 18 V^all. 206 ; Erie Ey. v. Penna., 21 id. 492; 
The License Tax Cases, 5 id. 462; Home Insurance Company v. Augusta, 93 
U. S. 116. 

2 Tucker v. Ferguson, 22 Wall. 527 ; W. F. Co. v. East St. Louis, 107 U. 
S. 365 ; U. P. Ey. v. Philadelphia, 101 U. S. 528 ; E. E. v. Gaines, 97 id. 697 ; 
Tomlinson v. Branch, 15 Wall. 460. 

3 Murray v. Charleston, 96 U. S. 432. 

* Gibbons v. Ogden, 9 Wheat. 201 ; The Passenger Cases, 7 How. 479 ; 
Transportation Co. v. Wheeling, 99 U. S. 280 ; W. F. Co. v. East St. Louis, 
107 id. 374. 



TAXATION OF COMMERCE. 35 

the state ;^ and a state mq.y tax goods brought from 
another state and mingled with the mass of property 
in the taxing state,^ and goods within the state, 
intended for transportation to another state but not 
actually started on their voyage f provided that the 
taxation is not so imposed as to discriminate against 
either the natural products of, or goods manufactured 
in, another state.^ A state has the right to tax its own 
citizens for the prosecution of any particular business 
or profession within the state, even if that business be 
indirectly concerned with commerce, thus, a state may 
tax exchange brokers, and the fact that bills of 
exchange are instruments of foreign and interstate com- 
merce will not relieve the broker from such taxation.^ 
If property within a state and otherwise liable to taxa- 
tion be in money at the date of its assessment for taxa- 
tion, a subsequent investment thereof in a subject of 
commerce does not relieve that capital from liability to 
state taxation.*^ While a state cannot tax the inter- 
state transportation of passengers or goods, it may 
require express companies doing business within its 
bounds by making contracts for interstate transportation 
to pay license fees f it may tax its railway companies 
upon the cash value of their capital stock,^ and it may 
by its charter of a railway charge a toll payable 

1 W. F. Co. V. East St. Louis, 107 U. S. 365 ; Transportation Co. v. Wheel- 
ing, 99 id. 273. 

2 Woodruff i;. Parham, 8 Wall. 173; Brown v. Houston, 114 U. S. 622. 

3 Coe V. Errol, 116 U. S. 517. 

* Ward V. Maryland, 12 Wall. 418; Welton v. Missouri, 91 U. S. 275,' 
Webber v. Virginia, 103 id. 344 ; Guy v. Baltimore, 100 id. 434 ; Corson v, 
Maryland, 120 id. 502; Walling v. Michigan, 116 id. 446 ; Eobbinst-. Shelby 
County, 120 id. 489 ; Sed. cf. Machine Co. v. Gage, 100 U. S. 676 ; Hinson v. 
Lott, 8 Wall. 148 ; Tiernan v. Rinker, 102 U. S. 123 ; Downham v. Alexan- 
dria Council, 10 Wall. 173. 

^ Nathan v. Louisiana, 8 How. 73. 

^ People V. The Commissioners, 104 U. S. 466. 

' Osborne V. Mobile, 16 Wall. 479. 

8 The Delaware R. E. Tax, 18 Wall. 206. 



36 STATE TAXATION. 

to the state for the use of the improved facilities of 
travel furnished by the railway.^ On the other hand, 
the states may not tax ships or ferry boats, when the 
owner is not by residence subject to the taxing power 
of the state, and when the ships or ferry boats only 
come within the jurisdiction of the state in the prosecu- 
tion of foreign or interstate commerce.^ Nor can a 
state tax the transportation of passengers coming by 
water into its ports from a foreign country or from 
another state f nor can a state tax the interstate trans- 
portation of goods by water f nor can a state impose 
port dues, tbat is, charges payable by all vessels, enter- 
ing, remaining in, or leaving a port without regard to 
services rendered to, or received by, the vessel f nor 
can a state tax a telegraph company upon messages 
transmitted by it to points outside of the state f nor 
can a state tax the interstate transportation of passen- 
gers or goods. It, therefore, cannot tax interstate freight 
by the pound ;^ nor can it tax the operation of sleep- 
ing-cars, owned by a foreign corooration f nor can it 
tax the gross receipts of corporations engaged in the 
business of running cars not their own property over a 
railway line within the state.^ 

1 B. & O. E. E. V. Maryland, 21 Wall. 456. 

2 St. Louis V. W. F. Co., 11 Wall. 423 ; G. F. Co. v. Pennsylvania, 114 U.S. 
196 ; P. & S. S. S. Co. v. Pennsylvania, 122 id. 326 ; Hays v. P. M. S. S. Co., 
17 How. 596 ; Morgan v. Parham, 16 Wall. 471 ; Moran v. New Orleans, 112 
U. S. 69. 

3 The Passenger Cases, 7 How. 283 ; Henderson v. The Mayor, 92 U. S. 
259 ; Commissioners of Immigration v. North German Lloyd, ibid. 269 ; Chy- 
Lung V. Freeman, ibid. 275 ; People v. Compagnie Generale Transatl antique, 
107 U. S. 59 ; P. & S. S. Co. v. Pennsylvania, 122 U. S. 326, overruling the 
case of the State Tax on Eailway Gross Eeceipts, 15 Wall. 284. 

* Almy V. California, 24 How. 169. 

5 Steamship Co. v. Port Wardens, 6 Wall. 31. 

6 W. u. T. Co. V. Texas, 105 U. S. 460. 

' The State Freight Tax, 15 Wall. 232 ; Erie Ey. v. Pennsylvania, ibid. 
282, note. 

8 Pickard v. P, S. C. Co., 117 U. S. 34; Tennessee v. P. S. C. Co., ibid. 51. 

9 Fargo V. Michigan, 121 U. S. 230. 



CHAPTEE IV. 

THE EEGULATION OF COMMEECR 

26. The constitutional provisions. 

27. The history of the commercial clause. 

28. Commerce defined. 

29. The regulation of commerce defined. 

30. The general distinction between the powers of the United States and of 
the states over commerce. 

31. Navigable waters. 

32. Title to the soil under navigable waters. 

33. The regulation of navigation. 

34. The regulation of subjects of commerce. 

35. The taxation of ships. 

36. Duties on tonnage. 

37. The taxation of the water transportation of passengers. 

38. The taxation of goods in interstate commerce. 

39. Discriminating taxation against products and manufactures of other 
rates. 

40. The taxation of exports by the United States. 

41. State taxation of imports and exports, and inspection laws, 

42. Improvements of navigation. 

43. Dams and bridges. 

44. Ferries. 

45. Wharves and piers. 

46. Pilotage. 

47. Quarantine and sanitary regulations. 

48. Port dues. 

49. Port regulations. 

50. Preferences of ports. 

51. Interstate railway transportation. 

52. Railway tolls. 

53. The police regulation of railways. 

54. State taxation of interstate transportation by railways. 

55. Telegraphs. 

56. Commerce with the Indian tribes. 

26. The Constitution of the United States contains 
three clauses which directly bear upon the regulation of 
commerce. Section 8 of article I declares that " the 



38 COMMERCE. 

Congress shall liave power ... to regulate commerce 
with foreign nations, and among the several states, and 
with the Indian tribes." Section 9 of the same article 
enumerates among the exceptions from the powers 
granted to the United States, that " no tax or duty shall 
be laid on articles exported from any state. No prefer- 
ence shall be given, by any regulation of commerce or 
revenue, to the ports of one state over those of another ; 
nor shall vessels bound to or from one state be obliged 
to enter, clear, or pay duties in another." Section 10 
of the same article, in its enumeration of the expressed 
restrictions upon the powers of the states, declares, that 
"no state shall, without the consent of the Congress, lay 
any imposts or duties on imports or exports, except 
what may be absolutely necessary for executing its 
inspection laws : and the net produce of all duties and 
imposts, laid by any state on imports or exports, shall 
be for the use of the treasury of the United States; and 
all such laws shall be subject to the revision and control 
of the Congress. No state shall, without the consent 
of the Congress, lay any duty of tonnage." There are 
also other clauses of the Constitution, which indirectly 
affect the regulation of commerce by the states. Thus, 
an act of a state legislature may be valid as a regulation 
of commerce in a matter of merely local concern, and 
yet the act, as affecting a particular person or corpora- 
tion may be void as an impairment of the obligation of 
a legally enforcible contract, or the act may be void for 
repugnancy to those other clauses of the Constitution 
which, having regard to the rights of citizenship, forbid 
a state to discriminate in favour of its own citizens and 
against the rights of citizens of other states. These 
constitutional provisions are not only in full force and 
vigour to-day, but their application is wider and more 
far-reaching than the framers of the Constitution 



NEW AGENCIES. 39 

imagined to be within the bounds of possibility. In the 
century that has passed since the adoption of the Con- 
stitution the country has made great strides. Less than 
three millions of people have grown to be more than 
fifty millions in number. Discoveries in science and 
inventions in the arts have developed new subjects of 
trade, and have created new agencies of commerce. 
Steam and electricity have been made to do man's bid- 
ding. Sailing vessels have given way to steamships, 
and railways have superseded turnpike roads and 
Conestoga wagons. Telegraphs and telephones have 
annihilated distance. The growth of population, the 
creation of new subjects of trade, and the improvements 
in the movement of traffic have necessarily resulted in a 
vast enlargement in the volume of commerce. In view 
of these great changes in the conditions of the problem, 
it is more than ever important that the constitutional 
limits upon the regulation of commerce should be clearly 
comprehended, and that the line Avhich separates the 
provinces of federal and of state authority over this 
subject of national interest should' be, so far as is possi- 
ble, accurately defined. 

27. It is an historical fact that the Constitution was 
framed and adopted mainly because all of the states had 
suffered under the Confederation by reason of the selfish 
commercial policy of England in closing her markets to 
goods of American manufacture, and because some of 
the states had also suffered by reason of the no less 
selfish commercial policy of other states in the imposi- 
tion of heavy duties on imported goods, and in the 
enforcement of vexatious restrictions upon trade. There 
were great differences of opinion as to other features of 
the Constitution, but, in the convention of 1787 and 
among the people, there was practical unanimity as to 
the expediency of vesting in the government of the 



40 COMMERCE. 

United States the power of so regulating commerce as 
to overcome the disintegrating forces which threatened 
the loss of all that had been gained by the success of 
the Kevolution.^ 

28. The term " commerce," therefore, as the framers 
of the Constitution understood it, and as Marshall, C. 
J., construed it in Gibbons v. Ogden,^ meant not only- 
traffic, but also commercial intercourse in all its 
branches, including the purchase and sale of commodi- 
ties, their transportation by sea and on land, their im- 
portation and exportation, and all that was necessarily 
incident to the transaction. As the Constitution is a 
frame of government intended to endure for all time, 
it follows that the term " commerce " must receive a 
construction sufficiently elastic to comprehend not only 
the subjects and instrumentalities of commerce known 
and used when the Constitution was framed, but also all 
present and future subjects of commerce and agencies 
of commercial intercourse.^ Yet everything that is 
connected with commerce is not necessarily commerce. 
Bills of exchange may be given in payment for goods 
to be imported, and yet such bills are mere personal 
obligations, and are not in themselves subjects of com- 
merce.^ On the same principle, the issuing or negotia- 
tion of a policy of insurance against the loss by fire of 
any property, which is not made a subject of commerce, 
does not constitute a transaction of commerce.^ So 

1 Gibbons v. Ogden, 9 Wheat. 11, 223; Brown v. Maryland, 12 id. 445; 
Cook V. Pennsylvania, 97 U. S. 574; County of Mobile v. Kimball, 102 id. 
697; Chapters IV, V, VI, VII, and VIII of Mr. Bancroft's History of the 
Constitution. ^ 

2 9 Wheat. 1, 189. 

3 P. Telegraph Co. v. W. U. Telegraph Co., 96 U. S. 1. 

* Bank of Augusta v. Earle, 13 Pet. 519, 531 ; Sturges v. Crowninshield, 4 
Wheat. 147 ; Nathan v. Louisiana, 8 How. 73. 

3 Paul V. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410 ; L. I. Co. 
V. Massachusetts, ihid. 566 ; P. F. Association v. New York, 119 U. S. 110. 



NATURE OF COMMERCE." 41 

also, a trade-mark, which identifies a particular article 
as one of a class which has as such acquired a special 
commercial value, is not in itself any part of commerce.^ 
On the other hand, bills of lading of goods sold and 
transported in the course of interstate commerce are, 
by reason of their representative character, entitled to 
protection as commerce,^ and the transmission of 
ideas by telegraph is commerce, for the reason 
that in the development of modern business methods 
the telegraph has become indispensable as a means of 
intercommunication in commercial intercourse.^ Would 
not the same reasoning apply, in the case of goods 
admittedly subjects of commerce, to the trade-marks on 
such goods, the bills of exchange drawn for the price of 
the goods, and the policies of insurance against the loss 
of the goods by fire, or by the perils of navigation ? 
Insurance, commercial paper, and trade-marks are as 
certainly nearly related to, and as truly incidents of 
commerce, as a telegraphic inquiry as to the state of 
the market, or a telegraphic order for the forwarding 
of the goods, though unlike the bill of lading, they do 
not represent the goods. Of course, if the subject- 
matter be in its nature commercial, it is immaterial 
whether the agency, by which commerce is carried on, 
be a natural person, or an association of natural per- 
sons, or a corporation.* 

29. To regulate commerce is, as Marshall, C. J., said 
in Gibbons v. Ogden,^ " to prescribe the rule by which 
commerce is to be governed." It is obvious that com- 

1 The Trade-Mark Cases, 100 U. S. 82, 95. 

"^ Almy V. California, 24 How. 169 ; as explained by Miller, J., in Wood- 
ruffs. Parham, 8 Wall. 138. 
^ P. Telegraph Co. v. W. U. Telegraph Co., 96 U. S. 1, 9. 

* Paul V. Virginia, 8 Wall. 168, 172; G, F. Co. v. Penna., 114 U. S. 196, 
215, 217 ; W. F. Co. v. East St. Louis, 107 id. 374. 

* 9 Wheat. 1, 196. 



42 COMMEECE. 

merce may be directly regulated by rules prescribing 
the manner in which its operations are to be conducted, 
or it may be indirectly regulated by the imposition of 
taxation upon its subjects or its instrumentalities. Id 
Philadelphia and Southern Steamship Company 
V. Pennsylvania/ Bradley, J., said, " taxing is one 
of the forms of regulation. It is one of the princi- 
pal forms." In Gibbons v. Ogden,^ Marshall, C. 
J., clearly distinguishes between the power to regulate 
commerce and the power to tax, and it is a legitimate 
conclusion from that distinction, that Congress cannot, 
in the exercise of the power to regulate, tax commerce, 
and that the states are not prohibited from taxing either 
the instrumentalities or the subjects of foreign or inter- 
state commerce, provided that such taxation be imposed 
on those instrumentalities and subjects of commerce as 
component parts of the mass of property in the country, 
and provided also that that which is in form taxation 
be not in substance a regulation, or, in other words, a 
restraint upon, or a jorohibition of, foreign or inter- 
state commerce. Taney, C. J., said in the Passenger 
Cases,^ " it has always been held that the power to 
regulate commerce does not give to Congress the 
power to tax it, nor prohibit the states from taxing it 
in their own ports and within their own jurisdiction. 
The authority of Congress to lay taxes upon it is de-- 
rived from the express grant of power in the eighth 
section of the first article to lay and collect taxes, duties,, 
imposts, and excises, and the inability of the states to 
tax it arises from the express prohibition contained in 
the tenth section of the same article." In the same 
case,^ McLean, J., said, "a state cannot regulate for- 
eign commerce, but it may do many things which more 

» 122 U. S. 336. * 7 How. 479. 

2 9 Wheat. 201. * p. 402. 



EEGULATIOX BY TAX. 43 

or less affect it. It may tax a ship or other vessel used 
in commerce the same as other property owned by its 
citizens. A state may tax the stages in which the mail 
is transported, but this does not regulate the conveyance 
of the mail any more than taxing a ship regulates com- 
merce, and yet in both instances the tax on the prop- 
erty in some degree affects its use." The essential dif- 
ference between taxation of commerce as property and 
regulation of commerce in the guise of taxation is 
elaborated in the judgments in Transportation Co. v. 
Wheeling^ and in Wiggins Ferry Co. v. East St. 
Louis ^ and is illustrated by every case in which the 
Supreme Court of the United States has had to deter- 
mine whether any particular tax imposed under state 
authority on a subject, or instrumentality, of foreign 
or interstate commerce be permitted, or forbidden, by 
the Constitution. 

30. Kecurring to the constitutional provisions affect- 
ing the regulations of commerce, as quoted in Sec. 27, and 
bearing in mind the general principles of constitutional 
construction, it will be observed that the constitutional 
provisions include : (1) an express grant to Congress of 
the power of regulating commerce "with foreign 
nations, and among the several states and with the 
Indian tribes ;" with the expressed restriction that the 
United States shall not lay any tax or duty on articles 
exported from any state, nor give any preference, by 
any regulation of commerce, to the ports of one state 
over those of another, nor oblige vessels bound to or 
from one state to enter, clear, and pay duties in another; 

(2) an implied restraint upon state regulation of com- 
merce, foreign, interstate, or with the Indian tribes ; and 

(3) an expressed prohibition of state duties on imports, 
exports, and tonnage, save under certain defined restric- 

1 99 U. S. 280. ' 107 U. S. 374. 



44 COMMEECE. 

tions, tlie most material of which restrictions is the 
consent of Congress. It is obvious that the power 
delegated to Congress is that of regulating, not all 
commerce, but commerce only of enumerated kinds, 
and under expressed restrictions. The result of the 
authorities, so far as they deal with the expressed grant 
of power to Congress, and the consequent implied re- 
strictions upon the states, is that the internal commerce 
of a state, that is, that commerce which is begun, con- 
tinued, and ended within a state, is exclusively a sub- 
ject for the regulation of that state ; and that foreign 
and interstate commerce, that is, that commerce, which, 
in its inception, or at any point of its progress, or at its 
conclusion, passes beyond the boundary of a state, is a 
subject of final regulation by Congress, but that, until 
Congress has regulated such commerce, the state may 
incidentally regulate it in points of merely local con- 
cern. The general distinction was clearly put by Mar- 
shall, C. J., when he said in Gibbons v. Ogden,^ " the 
genius and character of the whole government seems to 
be, that its action is to be applied to all the external 
concerns of the nation, and to those internal concerns, 
which affect the states generally, but not to those which 
are completely within a particular state, which do not 
affect other states, and with which it is not necessary to 
interfere for the purpose of executing some of the 
general powers of the government. The completely in- 
ternal commerce of a state, then, may be considered as 
reserved for the state itself." In the exercise of its 
power over commerce. Congress has regulated the regis- 
tration and recording of the titles of ships,^ the clear- 
ance and entry of ships and steamers,^ the tonnage 
duties payable to the United States by vessels f navi- 

1 9 Wheat. 294, =• Eev. Stat. 141, 97 et seq. 

2 Eev. Stat. Sec. 141, 31 et seq. * Eev. Stat. 4219. 



NAVIGABLE WATEES. 45 

gation, including sailing rules, and the life-saving ser- 
vice/ the transportation of passengers and merchandise 
by sea/ the shipping of sailors/ and their pay and 
discharge;^ the lighthouse service;^ the coast sur- 
vey;^ the improvement of rivers and harbours;''' and 
telegraphs.^ It has authorized the transportation of 
government supplies, and mails, and troops by railway^ 
and the connection of railways of different states so as 
to form a continuous line,^ and by the Interstate Com- 
merce Act^° it has regulated the interstate transportation 
of passengers and freight by railways and it has con- 
stituted a commission to carry the statute into effects 
The states have facilitated commerce by the improve- 
ment of navigation, the construction of railways, 
wharves, and bridges, and they have regulated it by 
the enactment of pilotage, quarantine, and police laws. 
The respective powers of the government of the United 
States and the governments of the states over commerce 
can best be illustrated by an analysis and classification 
of the cases in which the Supreme Court of the United 
States has been called upon to deal with the subject. 

31. At the time of the adoption of the Constitution, 
commerce meant primarily the navigation of the sea and 
of the rivers flowing into it in the course of the trans- 
portation of goods from foreign countries, for the inter- 
state transportation of goods, either by land or water, 
was then comparatively insignificant. It is natural, 
therefore, in considering the regulation of commerce 
under the Constitution to treat, first, of navigation, and, 
at the outset of the discussion, to determine what are, 
in law, navigable waters. In England navigable waters 

1 Sec. 4233. e 4681. 

*-' Sec. 4252. ' Sec. 5244. 

3 Sec. 4501 et seq. ; Sec, 4509 et seq. ^ Sec. 5263. 

* Sec 4549. ^ Sec. 5258. 

5 Sec. 4653. "> Act of Feb. 4, 1887. 



46 COMMEECE. 

in the legal sense of the term, and also in actual fact, 
are those only in which the tide ebbs and flows.^ As 
the adoption of the English rule in this country would 
have necessarily taken the inland lakes and the rivers 
which are in fact navigable where there is no ebb or 
flow of the tide, out of the jurisdiction of admiralty and 
also out of the jurisdiction of Congress in the regulation 
of commerce, Congress by the 9th section of the Judi- 
ciary Act of 1789 constituted navigability in fact the 
test of navigability in law. Nevertheless, in certain of 
the earlier cases the English test of navigability in a 
legal sense was followed, although, as has been shown, 
the reason of the rule failed here,^ but, in the later 
cases, it is laid down that waters in the United States 
which are navigable in fact are navigable in law, and, 
as such, subject to the regulating power of Congress in 
,so far as they may be waterways of foreign and inter- 
state commerce,^ 

In England the admiralty jurisdiction was further 
restricted by the requirement that the locus in quo, 
though within the ebb and flow of the tide, should not 
be infra corpus comitatus, nor at &ea infra fauces terrce, 
but these restrictions are not applicable in the United 
States.* Before the court had abandoned the English 
test as to admiralty jurisdiction, it was questioned by 

1 Genessee Chief v. Fitzhugh, 12 How. 443, 454. 

2 The Thomas Jefferson, 10 Wheat. 428 ; The Orleans v. Phoebus, 11 Pet. 
.175; Peyroux v. Howard, 1 id. 324; U. S. v. Coombs, 12 id. 72; Waring «. 
Clarke, 5 How. 441. 

3 The Genessee Chief v. Fitzhugh, 12 How. 443 ; The Daniel Ball, 10 Wall. 
557; The Montello, 20 id. 430; Barney v. Keokuk, 94 U. S. 324. As Davis, 
■J., said in the Montello, 20 Wall. 441, " the capability of use by the public for 
purposes of transportation and commerce" affords the "true criterion of the 
navigability of a river, rather than the extent and manner of that use. If it 
be capable in its natural state of being used for purposes of commerce, no mat- 
ter in what mode the commerce may be conducted, it is navigable in fact, and 
■becomes in law a public river or highway." 

* Waring v, Clarke, 5 How. 441. 



ADMIEALTY. 47 

Story, J., whether or not, the power to regulate com- 
merce authorized an extension of the admiralty jurisdic- 
tion to the inland lakes,^ but, in The Genessee Chief v. 
Fitzhugh,^ Taney, C. J., showed clearly that the judicial 
power being defined by the Constitution could not be 
extended by legislation under the guise of a regulation 
of commerce, the legislative regulation of any subject- 
matter of jurisdiction being in its nature essentially dis- 
tinct from the creation of a tribunal, and the vesting in 
that tribunal of jurisdiction over any particular subject- 
matter. The admiralty jurisdiction is, therefore, 
limited on inland waters to vessels engaged in and to 
maritime contracts and torts concerned with, or grow- 
ing out of, interstate transportation.^ Therefore, con- 
tracts of affreightment between ports of the same state on 
an inland lake,^ and contracts for supplies furnished to 
vessels engaged in such trade'^ are matters of local juris- 
diction, and not of admiralty jurisdiction in the courts 
of the United States. 

32. Before the Revolution, the title to navigable 
waters and to the soil under them was vested in the 
crown, or in its grantees. After the Kevolution, the 
people became sovereign, and thenceforth the title to 
navigable waters within the jurisdiction of a riparian 
state and to the soil under them became vested in that 
state for the public use of its citizens.^ After the 
adoption of the Constitution, as before, the title to navi- 

1 The Thomas Jefferson, 10 Wheat. 428. 

2 12 How. 443, 452. 

3 The Genessee Chief, 12 How. 443; Aliens. Newberry, 21 id. 244; 
Maguire v. Card, ibid. 248 ; The Belfast, 7 Wall. 624. 

* Allen V. Newberry, 21 How. 244. 

5 McGuire v. Card, 21 How. 248. 

« Martin v. Waddell, 16 Pet. 367; Den v. Jersey Co., 15 How. 426; Smith 
V. Maryland, 18 id. 71 ; Weber v. Harbor Commissioners, IS Wall. 57 ; Run- 
die V. D. &. R. C. Co., 14 How. 807 ; Jones v. Soulard, 24 How. 41 ; St. P. & 
P. R. R. V. Schurmeier, 7 Wall. 272. 



48 COMMEECE. 

gable waters and to the soil under them and the rio;ht 
to fish therein remained in the riparian state, its pro- 
prietary title extending in the case of inland waters 
constituting its boundary -^ from ordinary high-water 
mark ad medium filce, and in the case of the sea and 
its bays, to the distance that the international jurisdic- 
tion of the United States extended; and by force 
of the Constitution, the United States acquired only 
the right to exercise over navigable waters its power of 
resrulatino; commerce, and states which were admitted 
to the Union subsequently to the adoption of the Con- 
stitution have, of course, in this respect the same rights 
of sovereignty and jurisdiction as the original thirteen 
states.^ The distinction between rights of navigation 
over waters and the rights to the soil under them is 
illustrated by two cases. In Smith v. Maryland,^ the 
facts were, that the state of Maryland, having enacted a 
statute prohibiting the taking of oysters in its waters in 
a certain manner under pain of forfeiting to the state 
the vessel employed for that purpose, the sloop Yolant, 
owned by the plaintiff in error, and duly licensed as a 
coasting vessel under the statutes of the United States,, 
was seized under the state statute and condemned to 
forfeiture in a regular proceeding in a state court. The 
Supreme Court of the United States affirmed the judg- 
ment of the state court, holding that the title to the soil 
under navigable waters within its jurisdiction being 
vested in the riparian state, that state could rightfully 
regulate the exercise of rights of fishing therein, and 
enforce by judicial proceedings a forfeiture of ves- 
sels whose navigators should fail to conform to 

1 Barney v. Keokuk, 94 U. S. 324. 

2 Pollard V. Hagan, 3 How. 212; Weber v. Harbor Conunissioners, 1& 

Wall. 57. 

3 18 How. 71. 



SOIL UNDEK WATERS. 49 

the regulations so prescribed, and that a license to 
navigate granted by the United States confers "no 
immunity from the operation of valid laws of a state," 
The court, however, expressly declined to give any 
opinion as to the limits of the trust under which ri- 
parian states hold the soil under their navigable 
waters, or to decide whether rights of fishing in such 
waters could be enjoyed only by the citizens of the 
state, or by all citizens of the United States in common. 
The next case, McCready v. Virginia,^ not only fol- 
lowed in the line of Smith v. Maryland, but also put at 
rest the question undetermined in that case. The facts 
were that, under a statute of Virginia similar in terms 
to the statute of Maryland, save that it also imposed a 
pecuniary fine upon the offender, McCready, a citizen 
of Maryland, was indicted, convicted, and fined in a 
state court, and the Supreme Court of the United States 
afiirmed the conviction, holding that the riparian state 
is a trustee, not for all the citizens of the United States, 
but only for its own citizens as to the soil under its 
navigable waters, and the rights of fishing in such 
waters, and that, as Waite, C. J., said,^ "the right 
which the people of the state thus acquire comes not 
from their citizenship alone, but from their citizenship 
and property combined," and " it is, in fact, a property 
right and not a mere privilege or immunity of citizen- 
ship," and, therefore, a right which does not, by force of 
the Constitution, vest in the citizens of other states. It 
has likewise been held, that the grant to the United 
States of jurisdiction in admiralty does not carry with 
it a cession of navigable waters, or of general jurisdic- 
tion over them, and, therefore, the case of a murder 
committed on board a vessel of the navy of the United 
States, while at anchor in navigable waters within the 

1 94 U. S. 391. 2 p. 395^ 



50 COMMEKCE. 

jurisdiction of a state, is not cognizable in a court of 
the United States.^ 

33. The controversy as to the respective provinces of 
the United States and of the states in the regulation of 
navigation was first brought to the attention of the 
court in the leading case of Gibbons v. Ogden,^ wherein 
the facts were, that the state of New York had by stat- 
ute granted to Livingston and Fulton the exclusive 
right, for a term of years not then expired, of naviga- 
ting with boats moved by steam all the waters within 
the jurisdiction of New York, and that license had by 
mesne assignments become vested in Ogden, a citizen of 
New York. Gibbons, styled on the record a citizen of 
New Jersey, was then engaged in the business of trans- 
porting passengers on steamboats owned by him, 
licensed as coasting vessels by the United States, 
and plying between Elizabethtown in New Jersey 
and the city and port of New York. Ogden filed 
his bill in the Court of Chancery of New York, 
and obtained an injunction restraining Gibbons 
from running his steamboats in the waters of New 
York, and a final decree having been entered against 
Gibbons in the court of last resort of the state 
of New York, he removed the cause by appeal to the 
Supreme Court of the United States, which reversed 
the decree of the court below, and remanded the rec- 
ord with directions to dismiss the plaintiff's bill.^ The 

1 U. S. V. Bevans, 3 Wheat. 336. ^ 9 Wheat. 1. 

^ Mr. Justice Wayne, in his speech of 26th May, 1847, welcoming Mr. 
Webster to Savannah, referred to Gibbons v. Ogden as '' a controversy begun 
by a Georgian in behalf of the constitutional rights of the citizen," and 
added, "when the late Mr. Thomas Gibbons determined to hazard a large 
part of his fortune in testing the constitutionality of the laws of New York 
limiting the navigation of the waters in that state to steamers belonging to a 
company, his own interest was not so much concerned as the right of every 
citizen to use a coasting license upon the waters of the United States, in 
whatever way their vessels were propelled. It was a sound view of the law 



NAVIGATION. 51 

record, therefore, required the court to decide two 
questions, ^r5^, as to the power of the United States to 
so regulate commerce as to license passenger-carrying 
steam vessels, plying between different states, to navi- 
gate waters within the jurisdiction of a state, and sec- 
ond, as to the power of a state to so regulate commerce 
as to control the navigation of its waters by vessels 
engaged in interstate commerce. The judgment of the 
court sustained the power asserted for the government 
of the United States, and denied the existence of the 
power claimed to have been reserved to the state, and 
in reaching that result the court enunciated in clear 
terms the criteria of distinction between federal and 
state power over commerce. They held that the powder 
to regulate commerce with foreign nations and among 
the several states "includes every species of commer- 
. cial intercourse between the residents of any one state 
and the residents of a foreign nation, or the residents of 
another state," but that it does not " comprehend that 
commerce, which is completely internal, which is ear- 
but not broad enough for the occasion. It is not unlikely that the case would 
have been decided upon it, if you had not insisted that it should be put upon 
the broader constitutional ground of commerce and navigation. The court 
felt the application and force of your reasoning, and it made a decision releas- 
ing every creek and river, lake, bay, and harbour, in our country, from the 
interference of monopolies, which had already provoked unfriendly legislation 
between some of the states, and which would have been as little favourable to 
the interest of Fulton as they were unworthy of his genius." Mr. Webster, 
in his reply to Judge Wayne, said : " It is true, that, in the case of Gibbons 
V. Ogden, I declined to argue the case on any other ground than that of the 
great commercial question presented by it, the then novel question of the 
constitutional authority of Congress exclusively to regulate commerce in all 
its forms, on all the navigable waters of the United States, tlieir bays, rivers, 
and harbours, without any monopoly, restraint, or interference created by state 
legislation. That question I regarded as all-important. Other grounds 
might have been sufficient for the disposal of this particular cause, but they 
were of no public or permanent importance. If that great point had then 
been> waived or evaded, it is easy now to see what inferences unfavourable to 
the just authority of Congress might have been drawn." 2 Webster's Works, 
399, 402. 



52 COMMEKCE. 

ried on between man and man in a state, or between 
different parts of the same state, and which does not 
extend to or affect other states ;" that, both as to foreign 
and interstate commerce, " the power of Congress does 
not stop at the jurisdictional lines of the several states,'^ 
but may be exercised within the territory of a state wher- 
ever that which is at the time the subject of foreign or 
interstate commerce may be ; that the power of regu- 
lating foreign and interstate commerce is exclusively 
vested in Congress, and no part of that power can be con- 
currently or to any extent, exercised by the states ; that 
the power to regulate interstate and foreign commerce 
includes as an integral part thereof the regulation of the 
navigation of waters within the jurisdiction of any 
state in the prosecution of such commerce by the trans- 
portation of either passengers or goods in vessels pro- 
pelled by any sort of motive power ; that the grant to the 
United States of that power forbids the states to create 
monopolies to interfere with the free navigation of their 
waters in the prosecution of foreign or interstate com- 
merce ; and that, for these reasons, the statutes of New 
York granting to Fulton and his successors the exclu- 
sive rights under which they claimed were void for 
repugnancy to the Constitution. In The Daniel Ball,^ 
a legitimate corollary of the main point established in 
Gibbons v.. Ogden, was enunciated. The facts were, 
that the Acts of Congress of 7 July, 1838,^ and 80 
August, 1852,^ having required, under a penalty, all 
steam vessels engaged in the transportation of passen- 
gers and goods upon '' the bays, lakes, rivers, or other 
navigable waters of the United States, to be inspected 
and licensed," the Daniel Ball, a steamer engaged in 
navigating Grand river in the state of Michigan between 
the cities of Grand Rapids and Grand Haven was libeled 

^ 10 Wall. 557. 2 5 Stat. 304. ' 10 Stat. 61. 



NAVIGATION. 53 

by tlie United States in the court of the proper district 
for violation of the statutes, it being admitted by stipu- 
lation that some of the goods she carried came from, or 
were destined for, places out of the state of Michigan. 
A decree of condemnation was made in the court below, 
and affirmed in the Supreme Court, on the ground that 
the vessel, though plying exclusively within the limits 
of a state, was engaged in interstate commerce, for as to 
each article of merchandise transported from a point 
without the state to a point within the state, or vice 
versa, interstate commerce began whenever the article 
commenced to move in trade from one state to another, 
and continued until the article reached its destination, 
and the vessel was, by reason of its participation in that 
transportation, subject to the regulating power of Con- 
gress.^ The judgments in Siunot v. Davenport,^ and in 
Foster v. Davenport,^ were the necessary result of the 
principles upon which the judgment in Gibbons v. 
Ogden was based. These cases raised t*he question of 
the constitutionality of a statute of Alabama requiring 
the owners of steamboats navigating the waters of that 
state to file with the local authorities a statement in 
writing setting forth the name of the vessel, the name 
of its owners, their places of residence, and the amount 
of their respective interests in the vessel, as regulations 
of commerce affecting in Sinnot's case, vessels licensed 

1 22 How. 227. ^ 22 How. 244, 

^ Field, J., said very forcibly, p. 566, "we are unable to draw any clear and 
distinct line between the authority of Congress to regulate an agency employed 
in commerce between the states, when that agency extends through two or 
more states, and when it is confined in its action entirely within the limits of 
a single state. If its authority does not extend to an agency in such com- 
merce, when that agency is confined within the limits of a state, its entire 
authority over interstate commerce may be defeated. Several agencies com- 
bining, each taking up the commodity transported at the boundary line at one 
end of a state, and leaving it at the boundary line at the other end, the federal 
jurisdiction would be entirely ousted, and the constitutional provision would 
become a dead letter." 



54 COMMEECE. 

under the Act of Congress to carry on the coasting 
trade and plying between a port in Alabama and ports 
in other states, and, in Foster's case, steamboats 
licensed by the United States and employed as lighters 
and towboats in the port and harbour of Mobile in aid 
of vessels engaged in commerce, either foreign or coast- , 
wise, with other states. In each case the court held the 
statute of Mobile to be void as an attempted regulation 
of commerce.^ The case of Philadelphia and Southern 
Steamship Company v. Pennsylvania^ follows in the 
same line, for it was therein held, that a state cannot 
tax the gross receipts of a steamship company incor- 
porated by it and engaged in the transportation of per- 
sons and of goods in the prosecution of both foreign 
and interstate commerce. The principle established by 
Gibbons v. Ogden is further exemplified by Hall v, 
DeCuir,^ in which the question was as to the validity 
of a Civil-Rights statute of Louisiana, which had been 
so construed by the Supreme Court of the state as to 
require " those engaged in the transportation of passen- 
gers among the states to give to all persons traveling 
within that state, upon vessels employed in such busi- 
ness, equal rights and privileges in all parts of the 
vessel, without distinction on account of race or colour," 
and to subject " to an action for damages the owner of 
such a vessel, who excludes coloured passengers, on 
account of their colour, from the cabin set apart by 
him for the use of whites during the passage." The 
Court held the statute to be void as an attempted regu- 
lation of interstate commerce, on the ground that the 
statute did not " act upon the business through the local 
instruments to be employed after coming within the 

^ The case of New York v. Miln, 11 Pet. 102, though cited and relied 
upon at the argument, was not noticed in the judgment of the court. 
2 122 U. S. 326. =5 95 U. S. 485. 



NAVIGATION. ^ 55 

state, but directly upon the business as it comes into tbe 
state from without or goes out from within."^ Waite, 
C- J., said/ " while it j)urports only to control the 
carrier when engaged within the state, it must neces- 
sarily influence his conduct to some extent in the man- 
agement of his business throughout his entire voyage. 
His disposition of passengers taken up and put down 
within the state, or" taken up within to be carried 
without, cannot but affect in a greater or less degree 
those taken up without and brought within, and some- 
times those taken up and put down without. A pas- 
senger in the cabin set apart for the use of whites with- 
out the state must, when the boat comes within, share 
the accommodations of that cabin with such coloured 
persons as may come on board afterwards, if the law is 
enforced. It was to meet just such a case that the com- 
mercial clause in the Constitution was adopted. . . . 
If the public good requires such legislation, it must 
come from Congress, and not from the states."^ The 
case of Veazie v. Moor* presents the converse of tlie 
main proposition enunciated in Gibbons v. Ogden and 
in The Daniel Ball. The facts were, that the river 
Penobscot being entirely within the state of Maine 
from its source to its mouth, the last eight miles from 
its source not being navigable by reason of dams, but 
there being higher up the stream an imperfect naviga- 
tion, without outlet, or connection with any other water- 
way, the state of Maine, in consideration of improvements 
to be made to that navigation, granted to Moor and 
his associates an exclusive right of navigating by steam- 
boats such portions of the stream as they should im- 
prove, and Veazie, having built and attempted to oper- 

1 Per Waite, C. J., at p. 488. ^ p_ 439^ 

^ Clifford, J., delivered an elaborate concurring judgment. 

* 14 How. 568. 



56 COMMERCE. 

ate within tlae limits of the grant to Moor a steamboat 
for which he had obtained an United States enrollment 
and license, was enjoined by a state court at the suit of 
Moor, and the decree of the state court was affirmed on 
appeal by the Supreme Court of the United States. 
The ground of decision was, that any commerce that 
could by possibility be conducted upon the upper 
Penobscot was of necessity purely internal, and in no 
sense interstate, commerce, and that as internal com- 
merce it was properly a subject of state, and not of 
federal, regulation, and that a coasting license issued by 
the United States is " a warrant to traverse the waters 
washing or bounding the coast of the United States," 
but conveys no privileges to use the internal waters 
of a state in the prosecution of that which is 
not interstate commerce. Daniel, J., said, p. 574, 
" nor can it be properly concluded, that, because 
the products of domestic enterprise in agriculture or 
manufactures or in the arts may ultimately become 
the subject of foreign commerce, that the control of the 
means, or the encouragements, by which enterprise is 
fostered and protected, is legitimately within the import 
of the phrase foreign commerce, or fairly implied in 
any investiture of the power to regulate such commerce. 
. . . Such a pretension would effectually prevent or 
paralyze every effort at internal improvement by the 
several states ; for it cannot be supposed that the states 
would exhaust their capital and their credit in the con- 
struction of turnpikes, canals, and railroads, the remu- 
neration derivable from which and all control over 
which might be immediately wrested from them, be- 
cause such public works would be facilities for a com- 
merce which, whilst availing itself of these facilities, 
was unquestionably internal, although intermediately or 
ultimately it might become foreign." The case of Lord 



NAVIGATION. 57 

V. G. N. & P. S. S. Co,^ fiirnislies another illustration of 
the regulating power of Congress wit-h regard to com- 
merce. The facts were, that Section 4283 of the Re- 
vised Statutes of the United States, as defined in its 
application by Section 4289, having limited to the 
amount of their interest the liability of vessel-owners as 
common carriers of goods, and the steamer Ventura, 
owned by the G. N. & P. S. S. Co., and plying on the 
high seas between San Francisco and San Diego, both on 
the coast of, and in the state of California, having been 
totally lost while carrying goods for Lord, he brought 
suit ; the company set up by plea their discharge from 
liability under the Revised Statutes, and the judge at 
the trial having directed the jury that the statutes exon- 
erated the defendant, if they should find that the case 
came within the terms of the statute, a verdict was found 
for the defendant, and after judgment thereon, a bill of 
exceptions was taken to the judge's direction, but the 
Supreme Court affirmed the judgment of the court 
below, on the ground that as the vessel, though 
engaged in commerce between two ports in the same 
state, navigated the high seas, she necessarily be- 
came subject to the regulating power of Congress.^ 
The commercial power as affecting navigation also 
authorizes congressional legislation with regard to the 
sale and mortgaging of ships and requires state regula- 
tions on that subject to yield when they conflict with 
those made by Congress. Thus in White's Bank v. 
Smith,^ the facts were, that the Act of Congress of 29 
July, 1850,^ having declared that no mortgage of any 
vessel of the United States shall be valid against any 

1 102 U. S. 541. 

2 See Norwich Co, v. Wright, 13 Wall. 104, and The City of Norwich, 118 
U. S. 468, in further illustration of Sections 4282-4289 Revised Statutes of the 
United States. 

3 7 Wall. 646. * 9 Stat. 440. 



58 COMMERCE. 

person other than the mortgagor, his representativeSy 
and persons having any actual notice thereof, unless 
such mortgage " be recorded in the office of the collector 
of customs where such vessel is registered or enrolled," 
and a statute of the state of New York having declared 
that no chattel mortgage should be valid as against the 
creditors of the mortgagor, or as " against subsequent 
mortgages in good faith " unless originally, and 
annually thereafter, filed in the clerk's office in " the 
town and city where the mortgagor shall then reside,'^ 
" Hoyt, a resident of Buffalo in the state of New York, 
on 22 May, 1863, executed a mortgage to White's Bank 
of his schooner Emmett, and the mortgage was on 13 
June, 1863, recorded in the office of the collector of cus- 
toms at Buffiilo, where the Emmett was duly enrolled, 
and on 5 June, 1863, the mortgage was also filed in 
the clerk's office of the city of Buffalo, but it was not 
filed therein annually thereafter. Hoyt sold the vessel 
to Zalim of Sandusky in the state of Ohio, and on 2 
June, 1865, Zahm mortgaged her to Smith, and the 
Emmett having been duly enrolled in the office of the 
collector of customs at Sandusky, the mortgage to Smith 
was recorded in that office. Thereafter, the Emmett 
was sold under a paramount lien for sailors' wages, and 
the balance of the fund remaining after payment of the 
sailors' wages was claimed by both Smith and White's, 
Bank. The court below decided in favour of Smith, 
but the Supreme Court reversed that decree, and 
directed distribution to White's Bank, on the ground 
that ships or vessels being " the creations of the legisla- 
tion of Congress " and instrumentalities of commerce. 
Congress has, as incidental to its power of regulating 
foreign and interstate commerce, the power of prescrib- 
ing the manner of selling and encumbering ships, 
and the requisites to the validity of conveyances and 



INCIDENTAL EEGULATION. 59 

encumbrances thereof, and the laws of the states, when 
conflicting with such federal regulations, must give way, 
and, therefore, the mortgage to White's Bank, being 
prior in point of time to the mortgage to Smith, and 
having been duly recorded under the act of Congress, 
was not invalidated by the failure to renew annually 
its registration in the clerk's ofiice of Buffalo under the 
law of New York. In Aldrich v. y^tna Co.,^ the rul- 
ing in White's Bank v. Smith was reiterated. In his 
judgment in the Lottawanna,^ Bradley, J., intimates 
that under the power to regulate commerce, Congress 
might create a maritime lien for supplies and repairs 
furnished to vessels in their home ports. While state 
legislatures cannot create maritime liens, nor confer 
jurisdiction upon their courts for the enforcement of 
such liens, as exempli gratia, liens of shippers under 
contracts of affreightment to be performed on naviga- 
ble waters within the general jurisdiction of admiralty,^ 
nor can states authorize their courts to entertain suits 
for damages for the breach of contracts for the trans- 
portation of passengers on the high seas,^ nor proceed- 
ings in rem in cases of collision on navigable waters,^ 
yet, as the general maritime law does not recognize liens 
in favour of material men for supplies furnished to 
vessels in their home ports, or for materials furnished to 
ships in process of construction, the states may by statutes 
authorize such liens, and those liens may be enforced 
by proceedings in rem in the admiralty courts of the 
United States.'' On the same principle, as both at com- 
mon law and in admiralty, the right of action for 
a tort is personal and dies with the person injured, 

1 8 Wall. 491. 2 21 Wall. 577. 

3 The Belfast, 7 Wall. 624. * The Moses Taylor, 4 Wall. 411. 

5 The Hine v. Trevor, 4 Wall. 556, 

« Edwards?;. Elliott, 21 Wall. 532; The Lottawanna, ibid. 558. 



60 COMMEKCE. 

and no action is maintainable for a tort causing death/ 
tlie right of action in such cases, when conferred by a 
state statute, is enforcible in a state court in case of 
death caused by collision in navigable waters, which are 
within the jurisdiction of the state and also within the 
admiralty jurisdiction of the United States,^ and it is 
also enforcible in the common law courts of the United 
States^ and in the admiralty courts of the United 
States,^ In his judgment in Sherlock v. Ailing^ 
Field, J., says, " it is true that the commercial power 
conferred by the Constitution is one without limitation. 
It authorizes legislation with respect to all the subjects 
of foreign and interstate commerce, the persons engaged 
in it, and the instruments by which it is carried on. . . . 
The power to prescribe these and similar regulations 
necessarily involves the right to declare the liability 
which shall follow their infraction. Whatever, there- 
fore. Congress determines, either as to a regulation or 
the liability for its infringement, is exclusive of state 
authority. But with reference to a great variety of 
matters touching the rights and liabilities of persons 
engaged in commerce, either as owners or navigators of 
vessels, the laws of Congress are silent, and the laws 
of the state govern. . . . Until Congress, therefore, 
makes some regulation touching the liabilities of par- 
ties for marine torts resulting in the death of the per- 
sons injured, we are of the opinion that the statute of 
Indiana applies, giving a right of action in such cases 
to the personal representatives of the deceased, and 

^ Higgins V. Bucher, Yelv. 89 ; Baker v. Boulton, 1 Camp. 493 ; Ex parte 
Gordon, 104 U. S. 515 ; Crapo v. Allen, 1 Sprague 184 ; sed. cf. Cutting v. Sea- 
bury, ibid. 522. 

'■' American Steamboat Co. v. Chase, 16 Wall. 522; Sherlock v. Ailing, 93 
V. S. 99. 

=* C. & N. W. Ey. V. Whitton, 13 Wall. 270. 

* Ex parte Gordon, 104 U. S. 515 ; Ex parte Ferry Co., ibid. 519. 

^ 93U. S. 103. 



TEADE-MAEKS. * 61 

that, as thus applied, it constitutes no encroachment 
upon the commercial power of Congress." 

34. There are three cases which illustrate clearly 
the necessary limitations upon the exercise by Congress 
of its power over subjects of commerce, and the 
equally necessary limitation of the implied restrictions 
upon state action. In the Trade-Mark Cases,^ the 
question was as to the constitutionality of the acts of 
Congress of 14 August, 1876,' and 8 July, 1870,^ 
which authorize the registration in the Patent Office of 
devices in the nature of trade-marks, make the wrong- 
ful use of a registered trade-mark a cause of action in 
a civil suit for damages, and punish by fine and im- 
prisonment the fraudulent use, sale, and counterfeiting 
of registered trade-marks. The court in a judgment 
read by Miller, J., declined to decide, "whether the 
trade-mark bears such a relation to commerce in gen- 
eral terms as to bring it within congressional control, 
when used or applied to the classes of commerce which 
fall within that control,^ but held, that the statutes in 
question, not being limited in terms, or by the essential 
nature of their subject-matter, to the regulation of 
trade-marks in their relation to "commerce with foreign 
nations, and among the several states, and with the 
Indian tribes," they must be held to have been enacted in 
"the exercise of a power not confided to Congress," and 
are, therefore, unconstitutional. Prior to the judg- 
ment in the trade-mark cases, some of the Circuit 
Courts of the United States had sustained the consti- 
tutionality of the trade-mark legislation, and in 
McLean v. Fleming,^ Clifford, J., had said, "pro- 
tection for lawful trade-marks may be obtained by 
individuals, firms, or corporations entitled to the 

1 100 U. S. 82. 3 Kev. Stat. Sec. 4937 to 4947. » 96 U. S. 248. 

2 19 Stat. 141. * p. 95. 



62 COMMEKCE. 

same, if they comply with the requirements pre- 
scribed by the act of Congress. In Nathan v. Louisi- 
ana/ the facts were that tlie state of Louisiana having, 
by a statute, imposed an annual tax upon " money 
or exchange brokers," and the state having brought 
an action in one of its courts against Nathan, a broker 
dealing in foreign and interstate bills of exchange, 
for the collection of taxes unpaid, obtained a judgment 
against him, which was affirmed in the state court 
of last resort, and also by the Supreme Court, on the 
ground that a state has the right to tax its own citizens 
for the prosecution of any business within the state, 
although that business may consist in dealing in instru- 
ments of commerce.^ In People v. Commissioners,^ the 
facts were, that Haneman, a resident of New York, 
having been assessed for taxation under the laws of that 
state on his personal property as of 1 January, 1876, 
and having objected to the validity of the assessment as 
affecting the bulk of his property, on the ground that 

1 8 How. 73. 

^ McLean, J., said, p. 80, " this is not a tax on bills of exchange. Under 
the law, every person is free to buy or sell bills of exchange, as may be neces- 
sary in his business transactions ; but he is required to pay the tax if he 
engage in the business of a money, or an exchange, broker. The right of a 
state to tax its own citizens for the prosecution of any particular business or 
profession, within the state has not been doubted. . . , He is not engaged in 
commerce, but is supplying an instrument of commerce. He is less connected 
with it than the ship builder, without whose labour foreign commerce could 
not be carried on. . . . The taxing power of a state is one of its attributes 
of sovereignty, and where there has been no compact with the federal govern- 
ment, or cession of jurisdiction for the purposes specified in the Constitution, 
this power reaches all the property and business within the state, which are 
not properly denominated the means of the general government ; and, as laid 
down by this court, it may be exercised at the discretion of the state. . . . 
Whatever exists within its territorial limits in the form of property, real or 
personal, with the exceptions stated, is subject to its laws ; and also the num- 
berless enterprises in which its citizens may be engaged. These are subjects 
of state regulation and state taxation, and there is no federal power under the 
Constitution which can impair this exercise of state sovereignty." 

2 104 U. S. 466. 



TAXATION OF SHIPS. 63 

that property was " continuously employed in the busi- 
ness of exporting cotton from the United States of 
America to foreign countries," and " in purchasing and 
paying for cotton in different states of the United 
States," it was argued on his behalf " that products of 
the United States, which have passed the Customs 
Department, and are on shipboard, in the course of 
exportation to a foreign market, have become exports, 
and are no longer within the taxing power of the state ; 
that to tax money invested in such products is, in effect, 
laying an impost or duty on exports ; and that a tax on 
capital invested in the products of the United States 
in transit from one state to another for purposes of 
exportation, or on money used and employed in export- 
ing such products, is an unauthorized interference by 
the state with the regulation of commerce."^ The court, 
however, declined to determine those questions, but 
affirmed the judgment of the court below sustaining the 
assessment, on the ground that, if the capital assessed 
was, in fact, in money at the date of the assessment, a 
subsequent investment thereof in a subject-matter of 
commerce could not relieve that capital from liability 
to state taxation, and that the burden of proof resting 
on Haneman, he had failed to show that such invest- 
ment of his capital had preceded its assessment for taxa- 
tion. 

35. The cases as to state taxation of ships establish 
the doctrine that while a state may tax the 23roj)erty of 
those persons, natural or corporate, who may be by 
residence subject to its jurisdiction, even if that property 
be invested in ships, yet a state may not tax ships 
whose owners are not personally subject to its jurisdic- 
tion, and which come within its territorial limits in the 
pursuit of commerce. Thus, in Hays v. The Pacific 

1 Per Harlan, J., p. 468. 



64 COMMEECE. 

Mail Steamship Co./ the question was as to the liability 
to taxatioD under the laws of California of steamships, 
plying between the ports of New York and San Fran- 
cisco, whose home port and the place of whose registry 
under the federal statutes, and the residence of 
whose owner was in the state of New York, and the court 
held them not to be so liable,the ground of decision being, 
as stated by Nelson, J.," " that the state of California 
had no jurisdiction over these vessels for the purpose 
of taxation ; they were there but temporarily engaged 
in lawful trade and commerce, with their situs at the 
home port, where the vessel belonged, and where the 
owners were liable to be taxed for the capital invested, 
and where the taxes had been paid." Daniel, J., dis- 
sented on the ground that the federal court had no 
jurisdiction. Campbell, J., concurred solely on the 
ground "that the vessels were in transitu, having no 
situs in California, nor permanent connection with its 
internal commerce." In Morgan v. Parham,^ the 
facts raised the question that had been decided in 
Hays V. The Pacific Mail Steamship Co., and, in addition 
thereto, the further question as to the possible effect of 
a temporary enrollment, under the Act of 18 February, 
IVQS,"^ of a steamship in a port other than its home 
port in subjecting it to state taxation in the port of 
temporary enrollment. The steamship, " The Frances," 
having been registered in the port of New York, was 
temporarily enrolled in the port of Mobile, was em- 
ployed in the coasting trade between Mobile and New 
Orleans, and while the owner, Morgan, was a citizen of, 
and a resident in. New York, the master of the vessel 
and the agents, who managed its business, were resi- 
dents of Mobile. The court reiterated the doctrine 

1 17 How. 596. ^ 16 V^all. 471. 

2 p. 599. * 11 Stat. 306. 



TAXATION OF SHIPS. 65 

of the Hays Case, and held, also, that there was nothing 
in the temporary enrollment of the vessel " in the port 
of Mobile, that affected her registry in New York, or 
her ownership in that place, or that tended to subject 
her to the taxation of the state of Alabama."^ St. 
Louis V. Wiggins Ferry Co.,^ and Gloucester Ferry 
Co. V. Pennsylvania,^ also follow the rule laid down in 
Hays V. The Pacific Mail Steamship Co., but the con- 
verse of the doctrine of that case is to be found in 
Transportation Co. v. Wheeling,^ where the facts were, 
that the Transportation Company, being incorporated 
under the laws of West Virginia, having its principal 
office in the city of Wheeling in that state, and owning 
certain steamboats, which had been enrolled and li- 
censed under the laws of the United States, and which 
were used by it in navigating the Ohio between Wheel- 
ing and other ports on that river in the states of West 
Virginia and Ohio, was taxed by the city of Wheeling 
on the assessed value of the boats as part of the per- 
sonal property of the company under a statute of West 
Virginia authorizing the city to " assess, levy, and col- 
L ct an annual tax for the use of the city on personal 
property in the city," and the company, having paid 
the tax under protest, brought an action against the 
city in a state court to recover the amount of the tax, 
and judgment for the defendant was rendered in the 
court below and affirmed in error, the court holding 
that the tax was not a duty on tonnage, because not 
graduated in proportion to the cubical capacity of the 
vessel, nor a regulation of commerce, because it was 
only assessed upon the owner's personal property in- 
vested in the vessel, nor an infringement upon the 
privilege conferred by the enrollment and licensing of 

1 Per Hunt, J., p. 476. 3 114 U. S. 196. 

2 11 Wall. 423. • * 99 U. S. 273. 



66 COMMERCE. 

boats under the statutes of the United States, for such 
enrollment and licensing does not exempt the vessels so 
enrolled and licensed from taxation as the personal 
property of their owner. Wiggins Ferry Co. v. East 
St. Louis/ is to the same effect. A state cannot tax 
ships or vessels as instruments of commerce, though 
they be owned within its jurisdiction ; thus, in Moran 
V. New Orleans,^ the question was as to the power of 
a state to authorize municipal taxation of steam tow- 
boats licensed under the coasting laws of the United 
States and employed in towing vessels between the 
sea and the port of the municipality, and the court 
held, that the taxation was void as an attempted regu- 
lation of interstate commerce. On the same principle 
a state cannot by statute require the payment by every 
vessel coming into a port of the state to the port wardens 
of the sum of five dollars, whether the wardens be, or be 
not, called on to perform any service for the vessel.^ 

36. The Constitution in express terms forbids the 
states to impose duties on tonnage. Section 10 of 
article I of the Constitution declares that " no state 
shall, without the consent of Congress, lay any duty on 
tonnage." The word " tonnage," as applied to Ameri- 
can shipping, mean's "their entire internal capacity, 
expressed in tons of 100 cubical feet each, as estimated 
and ascertained by those rules of admeasurement and 
computation^ which are prescribed by the acts of Con- 
gress.^ The constitutional prohibition prevents state 
taxation of " water-crafts plying in the navigable waters 
of the state "...." at the rate of one dollar per 
ton of registered tonnage." ^ Nor can a state require 



1 107 U. S. 365. 112 U. S. 69. 

3 Steamship Co. v. Port "Wardens, 6 Wall. 31. 

* State Tonnage Tax Cases, 12 Wall. 212. ^ 13 Stat. 70 ; ibid. 444. 

6 State Tonnage Tax Cases, 12 Wall. 204. 



TONNAGE DUTIES. 67 

that every vessel arriving at a port of the state shall 
pay to the port wardens a fixed sum whether the 
wardens be, or be not, called on to perform any services 
for the vessel;^ nor compel every vessel arriving at 
any quarantine station on the coast of the state to pay 
a fixed sum per ton ; ^ nor require every steamboat 
mooring in any port of the state to pay a sum regulated 
by the tonnage of the boat;^ nor require all vessels 
entering a certain port to load or unload, or making 
fast to any wharf therein, to pay a sum regulated by 
the registered tonnage of the vessel.* In each one of 
these cases, the taxation imposed by the state would 
have been void as an attempted regulation of interstate 
commerce, had there been no express prohibition of 
state tonnage duties. 

37. The cases as to taxation of water transportation 
of passengers and goods further illustrate the princi- 
j)le. In the Head Money Cases,^ the facts were that 
Congress having by the Act of 3 August, 1882,^ imposed 
a duty of fifty cents payable " for each and every pas- 
senger not a citizen of the United States who shall come 
by steam or sail vessel from a foreign port to any port 
within the United States," certain steamship companies, 
having landed passengers at the port of New York, and 
having paid the duty under protest, brought actions at 
law against the collector of the port in a circuit court 
of the United States to recover back the amounts so 
paid, and judgments rendered for the defendant were 
afiirmed in the Supreme Court, on the ground that the 
statute imposing the duty was a rightful exercise by 
Congress of the power vested in it to regulate foreign 

- _ 1 Steamship Co. v. Port Wardens, 6 Wall. 31. 

2 Peete v. Morgan, 19 Wall. 581. 

3 Cannon v. New Orleans, 20 Wall. 577. 

* I. S. S. Co. V. Tinker, 94 U. S. 238. 

* 112 U. S. 580. 6 23 Stat. 214. 



6B COMMEECE. 

commerce, and that, while the burden imposed on the 
shipowner being, not a tax, but an incident of a 
regulation of commerce, is not subject to the constitu- 
tional requirement of uniformity of operation through- 
out the United States, it is, nevertheless, in fact uniform, 
for " it operates with the same force and effect in every- 
place where the subject of it is found."^ The correlative 
of the principle enunciated in that case is illustrated by 
a series of cases, in which, after considerable variance of 
judicial opinion, the court has finally so settled the rule 
as to leave it no longer an open question. In New York 
V. Miln,^ it was held, that a state may require, under a 
penalty, the master of every passenger-carrying vessel, 
on arriving at any port within the state, to report to the 
state authorities the name, place of birth, last legal 
settlement, age, and occupation of every passenger, the 
statute under consideration being one enacted by New 
York in 1824, and the court affirmed its validity on the 
ground that it was a regulation, not of commerce, but of 
police, and as such falling within the reserved powers 
of the state. The authority of the case is, however, 
much shaken by the admirably reasoned dissenting 
judgment of Story, J., with whose "conclusions Marshall, 
C. J., concurred,^ and the result reached by the court 
on the precise question before it is with difficulty recon- 
cilable with the later cases of Sinnot v. Davenport,^ and 
Foster v. Davenport.^ The next cases are Smith v. 
Turner, Health Commissioner of the Port of New York, 
and Norris v. The City of Boston, reported together 
under the title of the Passenger Cases,^ wherein was 
brought into question the validity of statutes of the 
states of New York and Massachusetts imposing taxes 

1 Per Miller, J., at p. 594. * 22 How. 227. 

2 11 Pet. 102. 6 22 How. 244. 

3 p. 161. « 7 How. 283. 



PASSENGER TAXES. 69 

upon the landing of alien passengers in the ports of 
those states. In the first of the Passenger Cases, Smith 
V. Turner, the question was as to the validity of a 
statute of New York, authorizing the Health Commis- 
sioner to demand, and, if not paid, to sue for and recover, 
from the master of every vessel arriving^ in the port of 
New York from a foreign port "$1.50 for each cabin 
passenger, and f 1.00 for each steerage passenger, mate, 
sailor, or mariner, and from the master of each coasting 
vessel 25 cents for each person on board." In the 
second of the passenger cases, Norris v. The City of 
Boston, the question was as to the validity of a statute 
of Massachusetts enacted in 1837, and imposing a duty 
of $2.00 per capita on alien passengers landed at any 
port in the state. The effect of those cases can best be 
stated, in the words of Miller, J., who, in Henderson v. 
Mayor of New York,^ after referring to the fact that one 
of the statutes under consideration in the Passenger 
Cases, though not the same statute considered in 
New York v. Miln, was part of the New York 
system of regulation of, and taxation upon, the 
landing of passengers from vessels, said that the 
New York statute "authorized the Health Commis- 
sioner to demand, and, if not paid, to sue for and re- 
cover, from the master of every vessel arriving in the 
port of New York from a foreign port one dollar and 
fifty cents for each cabin passenger, and one dollar for 
each steerage passenger, mate, sailor, or mariner, and 
from the master of each coasting vessel twenty-five 
cents for each person on board The defend- 
ant Smith, who was sued for the sum of $295, for re- 
fusing to pay for 295 steerage passengers on board the 
British ship ' Henry Bliss,' of which he was master, 
demurred to the declaration on the ground that the act 

1 92. U. S. 266, 269. 



70 COMMERCE. 

was contrary to tlie Constitution of the United States, 
and void. From a judgment against liim affirmed in 
the Court of Errors of the state of New York, he sued 
out a writ of error, on which the question was brought 
to this court. It was here held, at the January Term, 
1849, that the statute was repugnant to the Constitution 
and laws of the United States, and therefore, void." ^ 
Miller, J., added,^ "so far as the authority of the cases 
of New York v. Miln and the Passenger Cases can be 
received as conclusive, they decide, that the require- 
ment of a catalogue of passengers, with statements of 
their last residences and other matters of that character, 
is a proper exercise of state authority, and that the re- 
quirement of the bond, or the alternative of money of 
such passenger is void, because forbidden by the Con- 
stitution and laws of the United States. But the Pas- 
senger Cases . . . were decided by a bare majority of 
the court. Justices McLean, Wayne, Catron, McKinley, 
and Grier held both statutes void, while Chief Justice 
Taney and Justices Daniel, Nelson, and Woodbury 
held them valid. Each member of the court delivered 
a separate opinion, giving the reasons for his judgment, 
except Judge Nelson, none of them professing to be the 
authoritative opinion of the court. Nor is there to be 
found in the reasons given by the judges, who consti- 
tuted the majority, such harmony of views as would 
give that weight to the decision, which it lacks by rea- 
son of the divided judgments of the members of the 
court." Therefore, after as before the decision of the 
Passenger Cases, the question remained an open one 
until it was authoritatively determined by the unani- 
mous judgment of the court in the case of Henderson v. 
The Mayor of New York.^ In that case the ques- 
tion was as to the validity of the New York statutes, 

1 7 How. 572. == 92 U. S. 269. ^ 92 U. S. 259. 



PASSENGER TAXES. 71 

which had been so amended as to require from the 
owner, or consignee, of every vessel bringing from a 
foreign port into a port of the state passengers not being 
citizens of the United States a bond, in a substantial 
penalty, conditioned to indemnify the state against any 
expenditure for the relief or support of the jDarticular 
passenger, or, in default of such bond, the payment of a 
duty of $1.50 on the importation of each passenger. 
The argument was that "the requirement of the bond 
is but a suitable regulation under the power of the state 
to protect its cities and towns from the expense of 
supporting persons who are paupers or diseased, or 
helpless women and children, coming from foreign 
countries," and that the payment of the duty in lieu of 
giving the bond was a voluntary payment, and not a 
tax. But the court held, that the intent of the statute 
was to compel, by the imposition of a burdensome al- 
ternative, the payment of the duty ; that the duty was in 
effect, imposed uj)on, because ultimately payable by, the 
passengers, and it was therefore, a tax upon foreign 
commerce, and, as such, void. In the case of the 
Commissioner of Immigration v. North German 
Lloyd,^ a similar statute of Louisiana was held to be 
void. In Chy Lung v. Freeman,^ it was held, that a 
statute of California, requiring under similar conditions 
a bond or a commutation in money, not for all passen- 
gers, but only for certain classes of passengers, and in 
particular for " lewd and debauched women," was, on 
the like reasoning, void. In People v. Compagnie 
Generale Transatlantique,^ the question was as to the 
validity of a statute of New York, entitled " an act to 
raise money for the exercise of the inspection laws of 
the state of New York," and levying " a duty of one 
dollar for each and every alien passenger, who shall come 

1 92 U. S. 259. 2 92 U. 8.275. =* 107 U. S. 59. 



72 COMMEECE. 

by vessel from a foreign port to the port of New York, 
for whom a tax has not heretofore been paid," and the 
court held the statute to be void, on the grounds that the 
words " inspection laws," " imports," and " exports," as 
used in the Constitution, refer not to the persons, but to 
property, and that the case, therefore, came within the 
ruling of the cases which have been cited. The rule, 
therefore, as to the taxation of passengers coming by 
water into the ports of a state from foreign countries and 
from other states is that the United States may, and the 
states may not, directly or indirectly, tax such passen- 
gers. The application of the same principles deter- 
mined the case of the Philadelphia and Southern Steam- 
ship Co. V. Pennsylvania,^ in which the question was 
as to the liability of the gross receipts of a steamship 
company derived from the foreign and interstate trans- 
portation of persons and property to taxation by the 
state incorporating the company, and the court decided 
against the liability, overruling the case of the State 
Tax on Railway Gross Receipts.^ 

38. The cases as to state taxation of goods, as sub- 
jects of interstate commerce, follow in the same line. 
The first case is Almy v. California,^ in which the facts 
were that a statute of California having imposed a 
stamp duty " on bills of lading for the transportation 
from any point or place within that state to any point 
or place without the state," of gold or silver coin, and 
bars, and gold dust, and Almy having been indicted 
and convicted in the state court of last resort for viola- 
tion of that law, in that he, as master of the ship Rat- 
tler, then lying in the port of San Francisco, received 
on board certain gold dust for transportation to New 
York, and issued therefor an unstamped bill of lading ; 
the judgment was reversed in the Supreme Court of the 

1 122 U. S. 326. ^ 15 Wall. 284. ^ 24 How. 169. 



INTERSTATE COMMEECE. 73 

United States, on the grounds that the statute of the 
state was void for repugnancy to the constitutional pro- 
hibition of state duties on imports and exports, a duty 
'on a bill of lading being in substance a duty on the 
merchandise represented by that instrument. In 
Woodruff V. Parham/ Miller, J., in delivering the 
judgment of the court says, "it seems to have escaped 
the attention of counsel on both sides, and of the Chief 
Justice who delivered the opinion, that the case was one 
of interstate commerce. No distinction of the kind is 
taken by counsel, none alluded to by the court, except 
in the incidental statement of the termini of the voy- 
age The case, however, was well decided 

on the ground taken by Mr. Blair, counsel for the de- 
fendant, namely, that such a tax was a regulation of 
commerce, a tax imposed upon the transportation of 
goods from one state to another, over the high seas, in 
conflict with that freedom of transit of goods and per- 
sons between one state and another, which is within the 
rule laid down in Crandall v. Nevada,^ and with the 
authority of Congress to regulate commerce among the 
states." The next case is Woodruff v. Parham,^ 
in which the facts were that the city of Mobile having, 
under the legislative authority of the state of Alabama, 
imposed a tax upon " sales at auction," and Woodruff 
having, as an auctioneer, sold in their original and 
unbroken packages merchandise, the product of states 
other than Alabama, resisted payment of the tax, and 
an action having been brought in a court of the state 
against him, to recover the amount of the tax, judgment 
was entered against him, and affirmed in the Supreme 
Court, on the ground that, as the constitutional prohi- 
bition of duties on imports and exports has reference 
not to articles imported from one state to another,j^but 

1 8 Wall. 137. 2 6 Wall. 35. ^ g Wall. 123. 



74 COMMEECE. 

only to articles imported from a foreign country into 
one of the United States, or from one of those states to 
a foreign country, the tax in question was not a duty on 
imports or exports ; and that as the tax had an uniform 
application to all " sales at auction " within the city of 
Mobile, and did not discriminate as against " sales at 
auction " of the products of other states, it was not open 
to objection as an attempted regulation of interstate 
commerce/ In Brown v. Houston,^ the question was as 
to the liability to taxation in New Orleans under the 
authority of the state of Louisiana of certain coal which 
had been consigned by a resident of Pennsylvania to 
his agent in New Orleans for sale, the assessment for 
taxation being made under a statute of Louisiana tax- 
ing at the rate of " six mills on a dollar of the assessed 
valuation hereafter to be made of all property situated 
within the state," and the coal, when assessed, being 
afloat in the port of New Orleans in the vessel in which 
it had been transported from Pennsylvania. The court 
held that the coal was properly taxed, inasmuch as^ 
under the authority of Woodruff v. Parham, it was not 
an " import," and by reason of its consignment for sale 
at New Orleans and its delivery at that port for that 
purpose, it had become merged in the mass of property 
within the jurisdiction of the state of Louisiana. In 
Coe V. Errol,^ the question was, " whether the products 
of a state, in this case timber cut in its forests, are liable 
to be taxed like other property within the state, though 
intended for exportation to another state, and partially 
prepared for that purpose by being deposited at a place 
of shipment, such products being owned by persons 
residing in another state." ^ The court held, that, as " a 

^ Nelson, J., dissented, on the ground that the tax was a duty on imports, 
and as such wrongfully imposed. 
M14U.S. 622. 3 116X1.8.517. 

* Per Bradley, J., at p. 524. 



DISCRIMINATING TAXES. , 75 

state has jurisdiction of all persons and things within its 
territory whicli do not belong to some other jurisdic- 
tion," such as the persons and the property of representa- 
tives of foreign governments, and "property belonging 
to, or in the use of, the government of the United 
State," the mere fact of non-resident ownership does not 
exempt property from state taxation; and that property, 
the product of a state, though intended for transporta- 
tion to another state, is subject to taxation in common 
with the mass of property in the state until " actually 
started in the course of transportation to another state^ 
or delivered to a carrier for such transportation,"^ but 
such property is not, at any point, subject to state taxa- 
tion based upon its intended, or actual, trans|)orta- 
tion to another state. In the Daniel Ball,^ Field, J., 
said, " whenever a commodity has begun to move 
as an article of trade from one state to another^ 
commerce in that commodity between the states has 
commenced." Bradley, J., in Coe v. Errol,^ quoted 
this dictum of Field J., and added, " but this movement 
does not begin until the article has been shipped, or 
started for transportation from one state to another. 
. . . . Until shipped, or started on its final journey 
out of the state, its exportation is a matter altogether in 
fieri, and not at all a fixed and certain thing." 

39. The rule on this subject is further illustrated by 
those cases which hold that a state cannot by taxation 
discriminate against either the natural products of, or 
the goods manufactured in, other states. Thus in Ward 
V. Maryland,'^ a statute of Maryland having required all 
traders resident within the state to take out licenses, and 
to pay therefor fees varying from $12 to $15, and all 
non-resident traders, as a prerequisite to their sale of 
any goods, wares, or merchandise whatsoever, other than 

1 p. 525. 2 iQ ^all. 565. 3 116 U. S. 528. * 12 yf&\\. 418. 



76 COMMEKCE. 

agricultural products of and articles manufactured in 
Maryland, to take out a license and to pay therefor 
annually a fee of $300, and Ward, a citizen and resi- 
dent of New Jersey, having been indicted in a court of 
the state of Maryland and convicted of selling, without 
s, license, goods manufactured in a state other than 
Maryland, the judgment was affirmed in the state court 
of last resort, and, on a writ of error, reversed in the 
Supreme Court, on the grounds that the license tax was, 
by reason of its discrimination against goods grown or 
manufactured in other states, an attempted regulation 
of interstate commerce, and as such void, and that it 
was also in contravention of the constitutional declara- 
tion, that " the citizens of each state shall be entitled to 
all the privileges and immunities of citizens in the 
•several states." Clifford, J., delivered the judgment of 
the court. Bradley, J., concurred ; but held ^ that the 
license fee would be equally void, " although it imposed 
upon residents the same burden for selling goods by 
sample as is imposed on non-residents. Such a law 
would effectually prevent the manufacturers of the 
manufacturing states from selling their goods in other 
states unless they established commercial houses therein, 
or sold to resident merchants, who chose to send their 
orders. It is, in fact, a duty upon importation from one 
state to another, under the name of a tax." 

Following in the line of Ward v. Maryland, state 
laws have been held void, requiring payment of a tax 
or license fee by vendors of merchandise "not the 
growth, produce, or manufacture " of the state, no tax 
or license fee being required of vendors of domestic 
merchandise f authorizing a municipality to impose on 
vessels laden with the products of other states a fee for 

1 p. 432. 

2 Welton V. Missouri, 91 U. S. 275 ; Webber v. Virginia, 103 U. S. 344. 



DISCHIMIIS^ATING TAXES. 77 

their use of the public wharves, when vessels laden with 
the prod acts of the state are permitted to use such 
wharves without charge ;^ or requiring a " non-resident 
merchant, desiriug to sell by sample in the state, to j)ay 
for a license to do that business a sum to be ascertained 
by the amount of his stock in trade in the state where 
he resides, and in which he has his principal place of 
business."^ In Walling v. Michigan,^ the facts were, 
that a statute of Michigan, enacted in 1875, having 
required payment of a license tax by every person mak- 
ing sale within the state of spirituous or malt liquors 
for account of persons not having their principal places 
of business within the state, there being no such require- 
ment of agents of domestic dealers, and a statute of 
1879, as amended by a statute of 1881, having taxed to 
a greater amount the manufacturers of or dealers in 
domestic liquors, and Walling having been convicted 
in a court of the state of Michigan under the statute of 
1875 of selling without a license, spirituous liquors in 
the state of Michigan on behalf of a firm having its 
principal place of business in Chicago in the state of 
Illinois, and the judgment having been affirmed in 
the state court of last resort, he brought the record 
to the Supreme Court of the United States, where 
the jujJgment was reversed, on the ground that the 
statute of 1875, by its imposition of a tax on each sell- 
ing agent of a foreign dealer, discriminated "against 
persons for selling goods brought into the state from 
other states or countries,"^ and that as the statute of 
1881 imposed a single tax only on the manufacturer or 
dealer, and did not tax his selling agents, " the tax im- 

1 Guy V. Baltimore, 100 U. S. 434. 

2 Corson v. Maryland, 120 U. S. 502. The statement as to the effect of the 
Maryland statute is quoted from the concurring judgment of Waite, C. J., at 
p. 506. 

3 116 U. S. 446, * Per Bradley, J., at p. 454. 



78 COMMERCE. 

posed by the Act of 1875 is not imposed on the same 
class of persons as is the tax imposed by. the Act of 
1881,"^ and the later statute, therefore, cannot operate 
to relieve the discrimination created by the earlier 
statute. In Machine Co. v. Gage,^ the facts were, that 
the laws of Tennessee, as construed by the Supreme 
Court of that state, having levied a "tax upon all ped- 
lars of sewing-machines, without regard to the place of 
growth or produce of material or manufacture," and an 
agent of the Howe Machine Co., of Bridgeport in the 
state of Connecticut, having made sales in Tennessee of 
sewing-machines manufactured by his company in Con- 
necticut, and having paid the tax under protest, the 
company brought suit in a state court to recover back 
the amount of the tax, and judgment against the com- 
pany in the state court of last resort was affirmed in the 
Supreme Court on the ground, as stated by Swayne, J.,' 
that the law of the state made no discrimination. " It 
applies alike to sewing-machines manufactured in the 

state and out of it The state, putting all 

such machines upon the same footing with respect to 
the tax complained of, had an unquestionable right to 
impose the burden." Of course, if discrimination 
against the sale within a state of articles of non-domestic 
growth or manufacture be the test of the invalidity of a 
tax, it is not material that the mode of collecting the 
tax differ, if its amount be the same, on articles of do- 
mestic, and of foreign, produce and make ; thus 
in Hinson v. Lott,"* it was held that there was no 
discrimination in a statute requiring from vendors 
of liquor introduced from another state prepayment 
of a tax of fifty cents per gallon and imposing on 
manufacturers of domestic liquors a tax of the same 

1 Per Bradley, J., at p. 459. ^ p. 679. 

2 100 U. S. 676. * 8 VTall. 148. 



DISCKIMIXATmG TAXES. 79 

amount per gallon, on returns made from time to 
time.^ The case of Robbins v. Shelby County Tax- 
ing District^ gives the sanction of the judgment of 
the court to the dictum of Bradley, J., in his concur- 
ring oj^inion in Ward v. Maryland,^ and in so doing 
establishes a principle very different from that on 
which the judgment in Machine Co. v. Gage was based. 
The facts in the Kobbins case were, that a statute of 
Tennessee having required all drummers, etc., under a 
penalty to pay a license fee before selling goods in 
Shelby county, and Kobbins, a drummer acting on be- 
half of a firm doing business in Cincinnati in the state 
of Ohio, having been convicted in a court of the state 
of Tennessee of selling goods without a license, in vio- 
lation of the statute, and the state court of last resort 
having affirmed the judgment, the Supreme Court of 
the United States reversed the judgment, for the reasons, 
as stated by Bradley, J., that a state statute levying a 
tax or imposing any other restrictions " upon the citi- 
zens or inhabitants of other states, for selling, or seek- 
ing to sell their goods in such state before they are 
introduced therein"^ is an attempted regulation of 
interstate commerce, and as such void. The ground 
of the decision, therefore, is that the license fee 
in question is not a tax upon goods brought from 
another state within the jurisdiction of the taxing 
state, and there subjected to taxation in common with 
the mass of property in that state, but it is a tax which 
stands as a barrier in the way of the manufacturer or 
merchant of another state, and hinders him in the intro- 
duction of his sfoods into the taxino; state. In this 
view, it is no answer to say, as Waite, C. J., and Field 

^ Nelson, J., dissented on the grounds stated in his dissenting judgment in 
Woodruflf u. Parham, 8 Wall. 140. 

2 120 U. S. 489. 2 12 Wall. 432. * p. 494. 



80 COMMERCE. 

and Gray, J J., said in the dissenting judgment of the 
Chief Justice/ that " if citizens of other states cannot be 
taxed in the same way for the same business, there will 
be discrimination against the inhabitants of Tennessee 
and in favour of those of other states," for the conclu- 
sive reply is, that, while a state may, without discrimi- 
nation against interstate commerce, regulate its internal 
commerce, it cannot, with or without discrimination^ 
regulate that interstate commerce which has not been 
terminated by the delivery of its subject within the 
jurisdiction of the taxing state. In Tiernan v. Rinker," 
the facts were, that a statute of Texas having imposed 
an annual tax on the sale of " spirituous, vinous, malt^ 
and other intoxicating liquors," with a 'proviso that the 
tax should not operate uj^on " wines or beer manu- 
factured in this state," Tiernan, being engaged in sell- 
ing "spirituous, vinous, malt, and other intoxicating 
liquors," including " wines and beers," " not of the 
manufacture of the state," brought suit in an equity 
court of the state to enjoin the enforcement of the tax^ 
on the ground "that the statute is invalid in that it dis- 
criminates in favour of wines and beers manufactured 
in the state and against those which are manufactured 
elsewhere," and judgment on demurrer against the 
plaintiff was affirmed in the state court of last resort 
and in the Supreme Court, on the grounds, as stated 
by Field, J., that while " the statute of Texas is inopera- 
tive, so far as it makes a discrimination against wines 
and beer imported from other states when sold separately 
from other liquors," yet the plaintiff, being engaged in 
the sale of liquor other than beer or wines, and the 
statute making no discrimination in favour of other 
liquors of home manufacture, the plaintiff was right- 
fully taxed. Of course, he who claims, under the cases 

1 p. 501. ' 102 U. S. 123. 



DUTIES ON EXPORTS. 81 

cited, exemption from the burden of state taxation, must 
prove his case; thus, in Downham v. Alexandria 
Council,^ the council of the city of Alexandria in the 
state of Virginia having imposed a license tax of $200 
upon dealers in beer and ale not manufactured in the 
city but brought there for sale, and Bownham assert- 
ing the invalidity of the tax as affecting ale and 
beer manufactured in a foreign country, or in another 
state of the Union, but having proved only that the ale 
and beer, in which he dealt, were not manufactured in 
the city of Alexandria, the court dismissed the writ of 
error to the judgment of the state court which had held 
him liable to the payment of the tax, on the ground that 
the record raised no federal question. 

40. The United States are expressly forbidden to tax 
exports by section 9 of article I of the Constitution, 
which declares that " no tax or duty shall be laid on 
articles exported from any state." This constitutional 
restraint upon the federal power has been subjected to 
judicial consideration in only two cases. In Pace v. 
Burgess ^ the question was, whether or not the charge 
for stamps required by the act of Congress of July 20, 
1868,^ and 6 June, 1872,'* to be placed by the manufac- 
turers upon snuff and tobacco manufactured, not for 
domestic use, but for exportation to foreign countries, 
constituted, in the constitutional sense of the term, " a 
tax or duty " " on articles exported from any state," 
and the court held, that the requirement of such stamps 
was not a method of imposing an export tax or duty, 
but was simply the means devised for the prevention of 
fraud by separating and identifying the tobacco intended 
for exportation from that which was intended for 
domestic use, and of relieving the former from the inter- 

• 1 10 Wall. 173. 3 15 Stat. 157. 

* 92 U. S. 372. . M7 id. 254. ' 

6 



82 COMMEECE. 

nal revenue taxation to wliicli the latter was subjected, 
and that the price of such stamps was, in effect, nothing 
more than a charge for the services rendered by the 
government in effecting the segregation of the tobacco 
intended for exportation, and, therefore, in no sense a 
tax or duty on ' exports. In Turpin v. Burgess,^ the 
court re-affirmed the doctrine of Pace v. Burgess, and 
decided further, that the stamps being required to be 
affixed to the tobacco before it left the factory could not 
constitute a tax on exports because the tobacco was not 
then in course of exportation, however much the manu- 
facturer might then intend to ultimately export it ; and 
in support of that view, Bradley, J., referred to Coe v. 
Errol,^ wherein it was held that " goods intended for 
exportation to another state are liable to taxation as 
part of the general mass of property of the state of their 
origin until actually started in a course of transporta- 
tion to the state of their destination, or delivered to a 
common carrier for that purpose." 

41. Section 10 of article I of the Constitution declares, 
that " no state shall, without the consent of Congress, 
lay any imposts or duties on imports or exports, except 
what may be absolutely necessary for executing its in- 
spection laws, and the net proceeds of all duties and 
imposts laid by any state on imports and exports shall 
be for the use of the treasury of the United States and 
all such laws shall be subject to the revision and con- 
trol of Congress." In Brown v. Maryland,^ it was held 
that a state statute, requiring all importers of foreign 
goods by the bale or package, etc., and other persons 
selling the same by wholesale, bale, or package, etc., to 
take out a license, paying $50 therefor, and, for neglect 
or refusal to take out the license, subjecting them to 
certain forfeitures and penalties, was void for rejxig- 

1 117 U. S. 501 ^ 116 U. S. 517. ^ 12 Wheat. 419. 



TAXES ON IMPOETS. 83 

nancy both to the commerce clause of the CoDstitution, 
and to the express prohibition of state duties on im- 
pprts and exports save under the specific exception in 
the 10th section of article I of the Constitution, the 
ground of decision being that the power to regulate 
commerce with foreign nations includes the power to 
impose duties on the importation of goods therefrom, 
and, on condition of the payment of the duties, to 
license the importation and sale of the goods within 
any state, and that a penalty inflicted by a state on the 
importer for selling the goods as importer in the origi- 
nal form and package in which they are imported, and 
before they are incorporated with the mass of the prop- 
erty in the country, is an interference with the free- 
dom of importation, and as such an usurpation of 
power vested by the Constitution exclusively in the 
government of the United States.^ The doctrine 
of Brown v. Maryland has been applied in later 
cases. Thus it has been held, in Low v. Austin,^ that 
a state cannot impose an ad valorem tax on imported 
goods remaining in their original cases in the hands of 
the importer, though a similar tax be imposed on all 
merchandise in the state; and, in Cook v. Pennsyl- 
vania,^ that a state cannot tax an auctioneer's sales of 
imported goods in their original cases sold by him for 
the account of the importers thereof.^ In The State 

^ Marshall, C. J., said, p. 446, "Commerce is intercourse: one of its most 
ordinary ingredients is trafSc. It is inconceivable that the power to authorize 
this traffic, when given in the most comprehensive terms, with the intent 
that its efficacy should be complete, should cease at the point when its con- 
tinuance is indispensable to its value Sale is the object of impor- 
tation, and is an essential ingredient of that intercourse, of which importa- 
tion constitutes a part. It is as essential an ingredient, as indispensable to 
the existence of the entire thing, then, as importation itself. It must be con- 
sidered as a component part of thfe power to regulate commerce. Congress has 
a right, not only to authorize importation, but to authorize the importer to sell." 

2 13 Wall. 29. 3 97 U. S. 566. 

* In Groves v. Slaughter, 15 Pet. 449, it was argued that interstate traffic in 



84 COMMEECE. 

Tax on Railway Gross Beceipts/ it was held, that state 
taxation of the gross receipts of a railway is not taxa- 
tion of imports or exports, although those gross receip|;s 
include freights from the transportation of merchandise, 
which has come into a state from a foreign country, or 
which is in course of transportation within the state, 
for the purpose of being exported therefrom, but that 
case, having been shaken, as an authority, by the case 
of Fargo v. Michigan,^ has been overruled by Philadel- 
phia and Southern Steamship Co. v. Pennsylvania,^ 
and state taxation of the gross receipts of the transpor- 
tation of imported or exported goods, either by land or 
water, is no longer permissible. In Almy v. Cali- 
fornia,^ the court held that a stamp duty imposed by a 
state on bills of lading for gold or silver fell within the 
constitutional prohibition of duties on exports, not 
noticing in the judgment the argument which had been 
made at the bar, that the stamp duty in question wa& 
also unconstitutional as a regulation of commerce. 
Miller, J., in his judgment in Woodruff v. Parham,^ 
pointed out that the question in Almy v. California 
was really one of interstate, and not of foreign, com- 
merce, and he added, " the case, however, was well 
decided on the ground taken by Mr. Blair, counsel for 
defendant, namely: — that such a tax was ' a regulation of 
commerce,' a tax imposed upon the transportation of 
goods from one state to another, over the high seas, in 
conflict with that freedom of transit of goods and per- 
sons between one state and another, which is within the 
rule laid down in Crandall v. Nevada,*^ and with the 

slaves was, as interstate commerce, subject to regulation by Congress arid ex- 
empt from state regulation, but the court did not decide the question, for the 
case went off on other points. 

1 15 Wall. 284. * 24 How. 169. 

2 121 U. S. 230. ^ 8 Wall. 138. 

3 122 U. S. 326. " 6 Wall. 35. 



IMPORTS DEFINED. 85 

authority of Congress to regulate commerce among the 
states." It must also be remembered that the words 
"imports "and "exports" include only merchandise 
brought from foreign countries into the United States 
or carried from the United States to foreign countries, 
and not merchandise moved from one state into another 
state, and therefore a state may tax merchandise of the 
latter description, provided there be in such taxation 
no discrimination as against the growth or products of 
other states nor any regulation of interstate commerce.^ 
The word " imports " in the constitutional sense of 
the term, as applied to goods brought from a foreign 
country, does not include merchandise, which, by the 
terms of the contract of purchase, is not to be at the 
risk of the ]3urchaser until delivered to him in the port 
of entry, and such goods, though in their original 
packages, may be taxed by a state in whose port their 
contract of purchase is completed by delivery.^ The 
power vested in Congress to regulate commerce carries 
with it also, by implication, the power of punishing 
the commission of acts within the territory of a state 
which interfere with, obstruct, or prevent the transpor- 
tation of goods by sea from foreign countries. Thus in 
United States v. Coombs,^ the ninth section of the Act 
of Congress of 3 March, 1825, having forbidden under 
penalty of fine and imprisonment, the plundering of 
merchandise from any ship in distress or cast away in 
any place within the admiralty or maritime jurisdic- 
tion of the United States, and Coombs, on an indict- 
ment under that law, having been convicted, on jDroof 
that he had stolen goods from the shijD Bristol cast 
away above high- water mark at Bockaway Beach in 
the state of New York, the conviction was sustained, 

1 Woodruffs. Parham, 8 Wall. 123; Brown v. Houston, 114 V. S. 622. 

2 Wsiv'mg'v. The Mayor, 8 Wall. 110. ^ 12 Pet. 72. 



86 COMMEECE. 

the court holding that the statute in question was right- 
fully enacted in the exercise of the power to regulate 
commerce. 

In Gibbons v. Ogden/ Marshall, C. J., said, "the 
object of inspection laws is to improve the quality of 
articles produced by the labour of a country; to fit 
them for exportation ; or, it may be, for domestic use. 
They act upon the subject before it becomes an article 
of foreign commerce, or of commerce among the states, 
and prepare it for that purpose. They form a portion 
of that immense mass of legislation which embraces 
everything within the territory of a state, not surren- 
dered to the general government; all which can be 
most advantageously exercised by the states them- 
selves."^ In Turner v. Maryland,^ Blatchford, J., 
said, that the " recognized elements of inspection laws 
have always been quality of the article, form, capacity, 
dimensions, and weight of package, mode of putting up 
and marking and branding of various kinds, all these 
matters being supervised by a public officer having 
authority to pass, or not pass, the article as lawful 
merchandise, as it did, or did not, answer the prescribed 
requirements. It has never been regarded as necessary, 
and it is manifestly not necessary, that all those ele- 
ments should coexist in order to make a valid inspec- 
tion law. Quality alone may be the subject of the in- 
spection without other requirement, or the inspection 
may be made to extend to all the above matters. When 
all are prescribed, and then inspection as to quality is 
dropped out, leaving the rest in force, it cannot be said 
to be a necessary legal conclusion that the law has 
ceased to be an inspection law." 

1 9 Wheat. 203. 

^ For a reference to state inspection laws, see note to Gibbons v, Ogden, 9 
Wheat. 119, and note to Turner v. Maryland, 107 U. S. 51 ct seq. 
3 107 U. S. 55. 



INSPECTIOiSr LAWS. 87 

In Turner v. Maryland/ the question was as to the 
constitutionality of a statute of the state of Maryland, 
prohibiting under a penalty the exportation in hogs- 
heads of tobacco raised in the state, without delivery at 
a state tobacco warehouse, there to be inspected, num- 
bered, recorded, weighed, and marked, and without 
payment of certain specified fees, called "outage," as 
charges for the performance of service by the state's 
officials. The court decided in favour of the validity of 
thestatute, on the ground that it was enacted in the exer- 
cise of the state's power to lay such duties on exports as 
"may be absolutely necessary for executing its inspection 
laws," similar laws having been at various times enacted 
by many of the states, and Congress never having 
claimed the net proceeds of such duties, nor exercised 
its revisory and controlling power. The words "inspec- 
tion laws," "imports," and "exports" as used in the 
Constitution having exclusive reference to property as 
distinguished from persons,^ a state per capita tax; on 
immigrants cannot be sustained as a means of executing 
the inspection laws of a state. ^ 

42. The result of the cases with regard to improve- 
ments of navigation is that, while Congress may, in the 
exercise of its power to regulate commerce, authorize or 
prohibit improvements to the waterways of foreign or 
interstate commerce, a state may, if Congress does not 
prohibit, improve such waterways within its jurisdic- 
tion, and a state may exercise exclusive control over such 
other waterways as are within its territory, and are not 
used in the transportation of foreign or interstate com- 
merce. Thus in South Carolina v. Georgia,* the facts 
were, that the states of South Carolina and Georgia hav- 

1 107 U.S. 38. ^ Crandall v. Nevada, 6 Wall. 35. 

* People V. Compagnie G^n^rale Transatlantique, 107 U. S. 59. 

* 93 U. S. 4. 



88 COMMERCE. 

ing on 24 April, 1787/ entered into a compact stipulat- 
ing, inter alia, that the boundary line between the two 
states should be the northern branch of the Savannah 
river, and that the navigation of the river along a speci- 
fied channel should be forever free to the citizens of both 
states, Congress by the Act of 23 June, 1874,^ appro- 
priated certain sums of money " to be expended under 
the direction of the Secretary of War, ... for continu- 
ing the improvement of the harbour at Savannah," and 
that officer, for the purpose of securing a greater depth 
of water in that harbour, authorized the construction of 
a crib, which had the effect of diverting the water from 
the northern branch of the river, referred to in the com- 
pact of 1787. The state of South Carolina then filed 
its bill in equity in the Supreme Court of the United 
States against the state of Georgia, the Secretary of 
War, Mr. Taft, and his subordinates. General 
Humphries and Colonel Gilmore, praying an injunc- 
tion to restrain them from obstructing the navigation 
of the Savannah river in violation of the compact 
between South Carolina and Georgia. At the hearing 
the court dismissed the bill, holding that whatever 
might have been the rights of South Carolina and 
Georgia under the compact of 1787, the Constitution of 
the United States vested in Congress the power of regu- 
lating foreign and interstate commerce, and thereby 
authorized Congress to do whatever in its discretion, or 
in the discretion of its agents, might be expedient in the 
improvement of the navigation of the harbours and 
rivers which are waterways of commerce, foreign and 
interstate, even to the extent of changiiig the established 
channels of such rivers. 

^ The Constitution of the United States went into effect on the first Wed- 
nesday in March, 1789. Owings v. Speed, 5 Wheat. 420. 
2 18 Stat. 2-40. 



IMPROVEMENTS OF WATERWAYS. 89 

In Wisconsin v. Duluth/ the facts were, that Congress 
having directed, and appropriated the money for, the 
improvement of the harbour of Duluth, a town in the 
state of Minnesota, and situated upon Lake Superior, 
the state of Wisconsin apprehending, as the result of the 
improvements contemplated and in progress of con- 
struction, a diversion of trade from the town of Superior 
City, also on Lake Superior, but in the state of Wiscon- 
sin, by reason of alterations in the channel of a river 
flowing into the lake, filed a bill in equity in the 
Supreme Court of the United States to enjoin the con- 
tinuance of the work by the city of Duluth. The 
answer set up as an affirmative defense, that the work 
had been done with the approval and under the control 
of the United States, and with money appropriated 
therefor by Congress, and the court at the hearing, on 
bill, answer, and proofs, sustained the defense as set up 
in the answer and dismissed the bill. Miller, J., said,^ 
" while this court has maintained, in many cases, the 
right of the states to authorize structures in and over 
the navigable waters of the states, which may either 
impede or improve their navigation, in the absence of 
any action of the general government in the same 
matter, the doctrine has been laid down with unvarying 
uniformity, that when Congress has, by any expression 
of its will, occupied the field, that action was conclusive 
of any right to the contrary asserted under state 

authority If then, Congress, in the 

exercise of a lawful authority, has adopted and is carry- 
ing out a system of harbour improvements at Duluth, 
this court can have no lawful authority to forbid the 

work While the engineering officers of 

the government are, under the authority of Congress, 
doing all they can to make this canal useful to com- 

1 96 U. S. 379. ^ p. 387. 



90 COMMERCE. 

merce, and to keep it in good condition, this court can 
owe no duty to a state which requires it to order the 
city of Duhith to destroy it." 

On the other hand, in the County of Mobile v. Kim- 
ball,^ the facts were, that a statute of Alabama having 
created a Board of Commissioners for the improve- 
ment, deepening, and widening of the harbour of 
Mobile, and having authorized an issue of bonds to 
defray the cost of the improvements, and certain of the 
bonds having been stipulated to be issued to Kimball, 
a contractor for a portion of the work, Kimball filed 
a bill in equity to compel a delivery of certain bonds 
remaining due to him, and the defendants set up, 
among other defenses, the unconstitutionality of the 
statute by reason of its infringement upon the power 
of Congress over commerce. The court, however, 
affirmed the constitutionality of the statute, on grounds 
which can be best stated in the words of Field, J.,^ who 
said, " the uniformity of commercial regulations, which 
the grant to Congress was designed to secure against 
conflicting state provisions, was necessarily intended 
only for cases where such uniformity is practi- 
cable. Where from the nature of the subject or the 
sphere of its operations the case is local and limited,, 
special regulations adapted to the immediate locality 
could only have been contemplated. State action upon 
such subjects can constitute no interference with the 
commercial power of Congress, for when that acts the 
state authority is superseded. Inaction of Congress 
upon these subjects of a local nature or operation, 
unlike its inaction upon matters affecting all the states 
and requiring uniformity of regulation, is not to be 
taken as a declaration that nothing shall be done with 
respect to them, but it is rather to be deemed a declara- 

1 102 U. S. 691. 2 p^ g98. 



IMPEOVEMENTS OF WATERWAYS. 91 

tion that for the time being, and until it sees fit to act, 
they may be regulated by state authority. The im- 
provement of harbours, bays, and navigable rivers 
within the states falls within this last category of cases. 
The control of Congress over them is to insure freedom 
in their navigation so far as that is essential to the 
exercise of its commercial power. Such freedom is not 
encroached upon by the removal of obstructions to 
their navigability, or by other legitimate improvements. 
.The states have as full control over their purely 
internal commerce as Congress has over commerce 
among the several states and with foreign nations ; and 
to promote the growth of that internal commerce and 
insure its safety they have an undoubted right to re- 
move obstructions from their harbours and rivers, 
deepen their channels, and improve them generally if 
they do not impair their free navigation as permitted 
under the laws of the United States, or defeat any 
system for the improvement of their navigation pro- 
vided by the general government." The case of Huse 
V. Glover,^ follows in the same line. The facts in that 
case were that the state of Illinois, having by statute 
authorized the improvement of the navigation of the 
Illinois river in that state, including the construction 
of locks and dams, and the imposition of tolls propor- 
tioned to the tonnage of the vessels passing through 
the locks, the complainants, as owners of steamboats 
engaged in the navigation of the river, filed a bill in 
equity in the Circuit Court of the United States for the 
Northern District of Illinois to enjoin the Commis- 
sioners from exacting tolls for the passage of the com- 
plainants' steamboats, and from interfering with their free 
and uninterrupted navigation of the river. The cause 
was argued in the court below on demurrer to the bill, 

1 119 U. S. 543. 



92 COMMERCE. 

and a decree entered dismissing it, which on appeal was 
affirmed by the Supreme Court, on the ground that the 
state could rightfully make the improvement, in the 
exercise of its legislative discretion, " although in- 
creased inconvenience and expense may thereby result 
to the business of individuals," and charge tolls there- 
for, whose exaction is " compensation for the use of 
artificial facilities constructed," and not " an impost for 
the navigation of the stream," and the fixing of whose 
rate in proportion to the tonnage of the vessel and the. 
amount of freight carried by them is not a duty on 
tonnage within the meaning of the constitutional pro- 
hibition, because it is not " a charge upon a vessel, 
according to its tonnage, as an instrument of commerce, 
for entering or leaving a port or navigating the public 
waters of the country."^ The doctrine of Huse v. 
Glover was reiterated in Sands v. Manistee Kiver Im- 
provement Company,^ in which case it was further 
held, that the exaction of tolls for the use of an improved 
waterway is not a deprivation of property without 
due process of law, within the meaning of the XIV 
Amendment. So also in Withers v. Buckley,^ Withers 
being the owner of a plantation on Old river, which 
was within the state of Mississippi, and the state having 
by statute authorized a diversion of the water from that 
river, filed a bill in a court of the state to enjoin the 
prosecution of the work : the defendant demurred and 
at the hearing a decree was entered dismissing the 
plaintiff's bill, and on appeal that decree was affirmed. 
Veazie v. Moor^ involves the same principle. 

43. The deduction to be drawn from the cases as to 
dams and bridges is that the ultimate power of bridg- 
ing, or otherwise obstructing, navigable waters is vested 

1 See the Wharfage Cases, Sec. 45. ^ 20 How. 84. 

2 123 U. S. 288. * 14 How. 668. 



BRIDGES. 93 

in Congress, and as navigable waters are no longer the 
sole, nor, indeed, the main channels of commerce, and 
as' that volume of trade which is carried over such 
waters by bridges or viaducts is in some cases entitled, 
by reason of its ma^iitude, to greater consideration 
than that which is moved in boats upon the water, it 
must be determined in the case of any bridge, whose 
erection or the method of whose construction is called 
into question, whether or not the public interest will be 
promoted by its construction in the particular manner, 
and such a matter is primarily one for the decision of 
the legislature rather than of any courts, and until 
Congress has exercised its paramount power in the 
premises, the state or states within whose jurisdiction 
navigable waters are situated may, at its or their plea- 
sure, authorize by legislation the complete obstruction 
of those waters by dams, or their partial obstruction by 
bridges. The leading case is Willson v. The Black 
Bird Creek Marsh Co.,^ in which the facts were, that 
the Black Bird Creek being a navigable stream wholly 
within the state of Delaware, and that state having 
enacted a statute authorizing the company to construct a 
dam across the creek, and the dam having been built, and 
a sloop, enrolled and licensed under the navigation laws 
of the United States, and owned by Willson, having 
broken and injured the dam, the company brought an 
action of trespass vi et armis against Willson in a court 
of the state of Delaware, and he raised, by plea, the 
question of the right of the state to authorize the ob- 
struction of a navigable stream. A verdict having 
been found for the plaintiff, judgment thereon was 
affirmed by the Supreme Court, the ground of decision 
being,^ that, while Congress could authorize or prohibit 

^ 2 Pet. 245. 

^ Marshall, C. J., p. 252, said ; — " if Congress had passed any act which. 



94 COMMEECE. 

the obstruction of a navigable river, yet if that body did 
not act, the state, within whose territory the navigable 
river in question was situated, was free in its discretion 
to authorize the obstruction. The next case in the 
order of time is Pennsylvania .v. The Wheeling and 
Belmont Bridge Co.^ The facts were that, when the 
state of Kentucky was created by the severance of its 
territory from that of Virginia, the two states entered 
into a compact stipulating that the navigation of the 
Oliio "shall be free and common to the citizens of the 
United States," and that compact received the sanction 
of Congress. Congress thereafter neither licensed nor 
prohibited the obstruction of the navigation of the 
Ohio by a bridge, nor made any statutory regulations of 
commerce on the Ohio, other than such as were applicable 
to the navigable waters of the United States in general. 
The state of Virginia thereafter by statute authorized the 
construction of a bridge over the Ohio river from Wheel- 
ing to an island in the river belonging to Virginia, the 
manner of construction designated in the statute neces- 
sarily interfering with the navigation of the river by 
steamboats plying on the river between Pittsburg in 
the state of Pennsylvania and the points below the 
bridge on the Ohio and on the Mississippi. At that 
time the state of Pennsylvania was the proprietor of 
certain lines of railway and canal, connecting Pittsburg 
with the eastern portion of the state. While the bridge 

bore upon the case ; any act in execution of the power to regulate commerce, 
the object of which was to control state legislation over those small navigable 
creeks into which the tide flows, and which abound throughout the lower 
country of the middle and southern states; we should feel not much difficulty 
in saying that a state law coming in conflict with such act would be void. But 
Congress has passed no such act. The repugnancy of the law of Delaware to 
the Constitution is placed entirely on its repugnancy to the power to regulate 
commerce with foreign nations and among the several states ; a power which 
has not been so exercised as to affect the question." 
1 9 How. 647, 11 id. 528, 13 id. 518, 18 id. 421. 



BRIDGES. 95 

was in progress of construction, the state of Pennsyl- 
vania filed its bill in equity in the Supreme Court of 
the United States against the bridge company, praying 
an injunction to restrain the erection of the bridge 
and a decree for its abatement as a nuisance. Various 
interlocutory proceedings were had, and the court held 
that the state of Pennsylvania had, by virtue of its 
ownership of an interest in its lines of railway and 
canal, a standing in court ; that the bridge was an 
obstruction to the navigation of the Ohio, and, as such, 
a violation of the compact between Virginia and Ohio, 
and that it must be abated as a nuisance, unless so modi- 
fied in construction as not to obstruct the navigation. 
Further proceedings in the suit were, however, pre- 
vented by the passage of an act of Congress declaring 
the bridge as constructed to be a lawful structure, and 
the constitutional validity of this act having been sus- 
tained by the court, it necessarily followed that nothing 
more could be done by the court than to insist that so 
much of its final decree as awarded costs to the plain- 
tiff in the suit should be carried into effect. The case, 
as presented to the court for a decree on the merits, was 
simply that of a bridge over navigable waters which 
were wholly within the jurisdiction of the state of Vir- 
ginia, the erection and manner of construction of the 
bridge having been sanctioned by the state of Virginia, 
and not prohibited by the United States, and yet on 
this state of facts the court held that the brid2;e was 
abatable as a nuisance. This conclusion is certainly 
not reconcilable with the doctrine of either Willson v. 
Black Bird Creek Marsh Comj)any, or with that of the 
later cases.^ Indeed, the only possible distinction upon 
the facts to be drawn between the Wheeling Bridge 

^ See. the dissenting judgment of Clifford, J., in which Wayne and Davis, 
JJ., concurred, in Gilman v. Philadelphia, 3 Wall. 732. 



96 COMMERCE. 

Case and tlie other cases on the subject to which ref- 
erence has been, or will be, made, is to be found in the 
facts that the Ohio river constituted a waterway of in- 
terstate commerce between Pennsylvania and the states. 
between which the Mississippi flows, and that by com- 
pact between Virginia and Kentucky the navigation of 
the Ohio was declared "to be free and common to all 
the states ;" but neither of these distinguishing facts 
copld afford any ground for denying the right of 
Virginia to control the navigation of so much 'of 
the river as is within its jurisdiction so long as 
Congress, the constituted guardian of the rights of the 
citizens of all the states, deemed it unnecessary to inter- 
fere. The next case is M. & M. R. R. v. Ward,^ in 
which Ward filed his bill in the District Court of the 
United States for the District of Iowa, as the owner and 
the navigator of steamboats plying on the Mississippi 
river between St. Louis in the state of Missouri and St. 
Paul in the state of Minnesota, praying a decree for the 
abatement as a nuisance of a bridge over the Mississippi 
erected by the railroad company between Rock Island 
in the state of Illinois and Davenport in the state of 
Iowa under the authority of statutes of the two states. 
The court below entered a decree, directing the abate- 
ment of so much of the bridge as was within the limits 
of the state of Iowa, and on appeal by the railroad com- 
pany, the Supreme Court reversed the decree and dis- 
missed the plaintiff's bill.^ The reasons for the decree 
of reversal, as stated by Catron, J., were, that the middle 
of the Mississippi river between Illinois and Iowa being 
the boundary dividing the one state from the other, and 
the territorial jurisdiction of the District Court of the 

1 2 Bl. 485. 

2 Catron, J., delivered the opinion of the court, and Nelson, Wayne, and 
Clifford, JJ., dissented. 



BKIDGES. 97 

United States for the District of Iowa being restricted 
to the limits of that state, and a bill in equity to enjoin 
a nuisance being a remedy local in its character and 
operation, the court below had no jurisdiction to abate 
as a nuisance so much of the bridge as was within the 
jurisdiction of Illinois, and that on the proofs, the main 
channel of the river being on the Illinois side, it could 
not be held that the bridge by its obstruction to navi- 
gation on the Iowa side constituted so serious a nuisance 
as to justify the prostration of so much of the bridge as 
was on the Iowa side.^ 

The next cases that follow in the order of time are 
The Albany Bridge Case^ and The Passaic Bridge 
Case,^ and, in each of these cases, a decree of a Circuit 
Court dismissing a bill filed to enjoin the construction 
under state authority of a bridge over a navigable 
stream within the jurisdiction of a state was affirmed 
in the Supreme Court by an equally divided court, and, 
therefore, these cases, though technically authorities in 
favour of the right of the state/ have not that moral 
weight which attaches to judgments which are pro- 
nounced by all, or a majority of, the members of the 
tribunal, and which state the reasoning which has led 
the court to its conclusions. The next case is Gilman 
V, Philadelphia,^ in which the facts were that Gilman, 
a citizen of New Hampshire, and the owner of coal 
wharves on the river Schuylkill in the state of Penn- 
sylvania, filed his bill in equity in the Circuit Court of 
the United States to enjoin the construction under the 

1 Nelson, Wayne, and Clifford, JJ., dissented on the ground that the rule, 
as established by the Wheeling Bridge Case, being that riparian states have 
no power to obstruct the free navigation of a navigable river, it must in every 
case be found as a fact whether or not the bridge, whose abatement is sought 
as a nuisance, does so obstruct, and if that finding be in favour of the plaintiff 
a decree of abatement follows. 

2 2 Wall. 403. < Queen v. MiUis, 10 CI. &. Fin. 534. 

3 3 Wall. Appendix 782. 5 3 ^^11. 713. 

7 



98 COMMERCE. 

authority of that state, of a bridge over the Schuylkill 
river which would obstruct the navigation of that river 
and prevent the approach of boats to his wharves. A de- 
cree dismissing the plaintiff's bill was affirmed/ the 
court holding that there was no distinction in principle 
between the case at bar and the case of Wilson v. The 
Blackbird Creek Marsh Co.,^ and that the rule laid 
down in the earlier case was decisive of the controversy. 
The later cases of Pound v. Turck,^ Escanaba Co. v. 
Chicago,*^ Card well v. American Bridge Co.,^ Hamilton 
V. V. S. & P. B. B.,^ and Huse v. Glover/ follow in the 
same line and require but slight comment. It is, how- 
ever, to be noticed that the court held in Escanaba Co. 
V. Chicago, and in Huse v. Glover, and also in Sands v. 
M. B. &>. I. Co.,^ that the pre-constitutional ordinance 
of 1787 for the government of the northwestern terri- 
tory, providing for the free navigation of the waters 
leading into the Mississippi and the St. Lawrence, 
"without any tax, impost, or duty therefor," could not 
limit the powers of the states under the Constitution, 
and that if it could, the privilege of free navigation 
without tax, impost, or duty was not impaired by the 
construction of bridges over these waters.^ In Cardwell 
V. Bridge Co., it was decided that the act of Congress 
admitting California to the Union, and declaring, in 
terms almost identical with those of the ordinance of 
1787, that the navigable waters of the state should be 
forever free, did not affect the state's rights to bridge 
those navigable waters, and, in Hamilton v. V. S. & P. 

^ Chase, C. J., and Nelson, Grier, Swayne, Miller, and Field, JJ., concur- 
ring, and Clifford, Wayne, and Davis, JJ., dissenting. 

2 2 Pet. 250. 3 95 u, g_ 459. 4 io7 U. S. 678. ^ 113 U. S. 205. 

6 119 U. S. 280. ^ 119 U. S. 543. « 123 U.S. 288. 

^ That case also rules that a state may delegate to a municipal corporation 
created by it the power to construct, repair, and regulate the use of bridges 
under state authority. 



BEIDGES. 99 

R. E,., the court refused to give any greater effect to a 
similar declaration with regard to the navigation- of the 
Mississippi and its tributaries contained in the act of 
Congress admitting the state of Louisiana to the Union. 
Nevertheless, while the states may in the absence of 
congressional action upon the subject, in their discretion 
partially obstruct by bridges, or wholly obstruct by 
dams, navigable waters within their limits, yet the ulti- 
mate power over the matter is vested in Congress, 
Bridge Co. v. United States,^ and Congress may forbid, 
or permit upon conditions, the erection of a bridge 
under state authority,^ or it may legalize a bridge al- 
ready erected, pending a suit to enjoin its construction,^ 
or even after the Supreme Court of the United States 
has entered a final decree declaring the bridge as con- 
structed to be an unlawful obstruction to navigation.^ 
It is also competent for Congress to declare that a 
bridge over navigable waters, if constructed in a speci- 
fied way, shall not be held to be a nuisance, but 
shall be deemed to be a lawful structure, and to dele- 
gate to the Secretary of War, or to other officers of 
the government, the duty of determining whether or 
not the required method of construction has been 
adopted.^ 

44. The result of the cases as to ferries is, that inter- 
state ferries are primarily subjects of state regulation, 
and that a state may tax a ferry franchise granted by 
it, and that it may tax the ferry-boats owned by a 
person, natural or corporate, who, by reason of residence 

^ 105 U. S. 470. For a reference to the acts of Congress, which have been 
passed in the exercise of this power, see the judgment of Waite, C. J., 105 U. 
S. 476. 

2 Bridge Co. v. Unted States, 105 U. S. 470. 

3 The Clinton Bridge, 10 Wall. 454. 

* Pennsylvania v. W. & B. Bridge Co., 18 How. 421. 
5 Miller v. New York, 109 U. S. 385, 393. 



100 COMMEECE. 

within the territory, is subject to its jurisdiction ; but a 
state may not tax ferry-boats owned by a person, 
natural or corporate, who is not by residence within its 
territory subject to its jurisdiction, and which only 
come within its jurisdiction in the prosecution of inter- 
state commerce. In Gibbons v, Ogden,^ Marshall, C. 
J., enumerates " turnpike roads, ferries," etc., as " com- 
ponent parts " of " that immense mass of legislation^ 
which embraces everything within the territory of a 
state not surrendered to the general government," yet 
as Field, J., has clearly shown in Gloucester Ferry Co. 
V. Pennsylvania,^ these words, fairly taken, do not mean 
that a state can so regulate ferries plying between its 
ports and the ports of another state as to obstruct inter- 
state or foreign commerce, but they mean only that, as 
the privilege of keeping a ferry has been from earliest 
times " a franchise grantable by the state, to be exer- 
cised within such limits and under such regulations as 
njay be required for the safety, comfort, and con- 
venience of the public,"^ the state may annex condi- 
tions to the grant of the franchise. A ferry is a fran- 
chise entitling him to whom it is granted to exercise at 
a designated point on the bank of some navigable water 
the privilege of embarking and landing passengers for 
and from some other point. Thus it is said in 
Viner's Abridgment,* " a Ferry is in Kespect of 
the Landing Place, and not of the Water ; the Water 
may be to one and the Ferry to another; as 'tis of 
Ferries on the Thames, where the Ferry in some 
Place belongs to the Arch Bishop of Canterbury, 
when the Mayor of Loudon has the interest in the 
Water ; and in every Ferry the Land of both Sides of 
the Water ought to be to the Owner of the Ferry, or 

1 9 Wheat. 203. ^ pgj, pigld, J., 114 U. S. 196. 

2 114 U. S. 196, * Vol. XIII, 208, tit. Ferry. 



FERRIES. 101 

otherwise lie cannot land on the other Part." A ferry 
is therefore, the subject of grant and regulation under 
state authority. Thus in Conway v. Taylor/ the state 
of Kentucky having granted to the appellees an exclu- 
sive ferry at the town of Newport in that state situated 
on the Ohio river, and the appellees having under that 
license maintained the ferry between Newport and Cin- 
cinnati in the state of Ohio, and the appellants having 
undertaken, by means of a steamboat licensed as a 
coasting vessel of the United States, to carry passengers 
between Cincinnati and Newport and to land them at 
the latter port in derogation of the exclusive ferry right 
vested in the appellees, and having been at the suit of 
the appellees enjoined from so doing by the decree of 
the court below, that decree was affirmed, on the ground 
that the ferry franchise, being granted in respect of the 
landing, was a matter of state regulation, that so far as 
regards rights exercised in one state under such a 
franchise, though as a means to the end of transporta- 
tion, to or from another state, the concurrent action of 
the two states was not necessary, and that the United 
States coasting license granted to the appellant's boat, 
while entitling them to navigate in the prosecution 
of commerce, did not empower them to invade the ap- 
pellee's ferry fmnchise, nor to participate in the exer- 
cise of that privilege, for " the vitality of such a franchise 
lies in its exclusiveness," and " the moment the right 
becomes common, the franchise ceases to exist."^ The 

1 1 Bl. 603. 

^ per Swayne, J., p. 634. In Fanning v. Gregoire, 16 How. 524, where the 
question was as to the exclusive character of a ferry francliise under the terms 
of a certain grant and the decision was adverse to its exclusiveness, McLean, 
J., said, p. 534, " the argument that the free navigation of the Mississippi 
river, guaranteed by the ordinance of 1787, or any right which may be sup- 
posed to arise from the exercise of the commercial power of Congress, does 
not apply in this case. Neither of these interferes with the police power 
of the states, in granting ferry licenses. When navigable rivers, within the 



102 COMMEECE. 

right of a riparian state to grant franchises to ferries 
engaged in the transportation of passengers to and from 
its shore to that of another state, includes both the right 
to grant such ferries on condition, that is, to license 
them on payment of a fee, or tax them for, and also, 
under certain limitations, to tax the boats and other 
property used in the business of the ferry. Thus, in 
Wiggins Ferry Co, v., East St, Louis,^ the facts were, 
that the state of Illinois having by a statute of 1819 
granted to Wiggins the franchise of establishing and 
running a ferry upon the MississipjDi, and having by a 
statute of 1853 incorporated the Wiggins Ferry Com- 
pany with power to hold, use, and enjoy the franchise 
theretofore granted to Wiggins and to run a ferry from 
East St. Louis in Illinois to St. Louis in Missouri, and 
the company having in the exercise of its franchise 
employed boats which had been duly licensed as coast- 
ing vessels of the United States, and the city of East St. 
Louis having, under the powers conferred upon it by 
its charter, imposed, by an ordinance of 1878, a license 
fee of |100 per annum for* each boat of the Wiggins 
Ferry Company, and, on the company's refusal to make 
payment thereof, having brought an action to recover 
the amount of the annual license then due, judgment 
was rendered in the court below against the ferry com- 
pany and afl&rmed in the Supreme Court, the ground of 
decision being that the tax, being imposed not on the 
boats but on their owner, and being assessed at a fixed 
rate and not graduated in proportion to the carrying 
capacity of the boats, was not a tonnage tax, and being 
taxation of the personal property of the owner, who was 
admittedly resident within the jurisdiction of the state 

commercial power of the Union, may be obstructed, one or both, of these 
powers may be invoked." 
1 107 U. S. 365. 



FEREIES. 103 

and, therefore, subject to taxation by it, it was not a 
regulation of commerce, nor an infringement wpon any 
I'igiits conferred by the enrolhnent and licensing of the 
boats under the statutes of the United States. Trans- 
portation Co. V. Wheeling,^ lays down the same princi- 
ples. In St. Louis v. The Wiggins Ferry Co.,^ the sole 
question was whether the company was taxable by the 
city of St. Louis under a statute permitting that city^ to 
tax " all property within the city," the facts as found in 
the case being that the company was incorporated under 
the laws of Illinois, but its principal office was in St. 
Louis in the state of Missouri, while the boats when not 
in actual use were laid up on the Illinois shore, and 
when in use were permitted by the ordinances of St. 
Louis to remain not longer than ten minutes at a time 
at their St. Louis landing. On these facts the court 
held, that the boats " did not so abide within the city as 
to become incorporated with and form part of its per- 
sonal property," and, " hence they were beyond the 
jurisdiction of the authorities by which the taxes were 
assessed," and were not w;ithin the meaning of the 
statute " within the city." In Gloucester Ferry Co. v. 
Pennsylvania,^ the facts were that the company having 
been incorporated by a statute of the state of New 
Jersey, maintained a ferry on the Delaware river between 
Gloucester in that state, and Philadelphia in the state 
of Pennsylvania, owning a dock at Gloucester and 
leasing one at Philadelphia, and owning or leasing the 
boats which it used in the operation of the ferry, those 
boats being registered at the port of Camden in the 
state of New Jersey, and when not in use being laid up 
on the New Jersey bank of the Delaware, and when in 
use only remaining at the dock on the Pennsylvania 
side sufficiently long to discharge and load passengers 

1 99 U. S. 273. 2 11 ^all. 423. ^ 114 xj. g, 196. 



104 COMMERCE. 

and freight. The state of Pennsylvania having assessed 
the capital stock of the company for taxation under a 
statute of the state subjecting to taxation the capital 
stock of companies incorporated by other states and 
" doing business in " that state, and the Supreme Court, 
of the state having held the company liable to taxation 
under that statute, the Supreme Court of the United 
States reversed the decree of the state court, holding 
that while the company did business within the state of 
Pennsylvania within the meaning of the statute impos- 
ing the tax, yet, the business being interstate commerce, 
inasmuch as it was the interstate transportation of pas- 
sengers and freight, and the capital of the company 
being invested in its boats and in that business, that 
capital was not subject to taxation by the state of Penn- 
sylvania, for the reason that such taxation was in 
practical effect the imposition of a burden on, and an 
obstruction to, and, therefore, a regulation of, interstate 
commerce, and as such void. Field, J., said,^ " the 
company has no domicile in Pennsylvania, and its capi- 
tal stock representing its property is held outside of 
its limits. It is solely, therefore, for the business of the 
company in landing and receiving passengers at the 
wharf in Philadelphia that the taxislaid, and that busi- 
ness, as already said, is an essential part of the trans- 
portation between the states of New Jersey and Penn- 
sylvania, which is itself interstate commerce. While it 
is conceded that the property in a state belonging to a 
foreign corporation engaged in foreign and interstate 
commerce may be taxed equally with like property of 
a domestic corporation engaged in that business, we are 
clear that a tax or other burden imposed on the property 
of either corporation because it is used to carry on that 
commerce, or upon the transportation of persons or 

1 p. 211. 



WHAEFAGE. 105 

property, or for the navigation of the public waters over 
which the transportation is made, is invalid and void as 
an interference with, and an obstruction of, the power 
of Congress in the regulation of such commerce." The 
doctrine of this case is further supported by that of P. 
^ S. S. S. Co. V. Pennsylvania.^ 

45. The validity of charges imposed on vessels by 
reason of their use of the facilities afforded by wharves 
and piers constructed under state authority on the 
banks of navigable waters depends upon the same 
principles as those which have been laid down in the cases 
of improvements to navigation ; and the result of the 
cases is, that the states may build wharves on navigable 
rivers, and collect reasonable dues for the use thereof, 
provided that such dues are not so charged as to dis- 
criminate against interstate commerce. It has already 
been said,^ that the title to the land under navigable 
waters is vested in the riparian state subject only to the 
paramount power of the United States over navigation. 
While the title of the individual riparian owner, in 
general, stops at high-water mark, the state has the 
power to build wharves and piers on the bank of the 
stream below high-water mark,^ and it may charge and 
collect wharfage dues therefor. Thus in Packet Co. v. 
Keokuk,* the facts were that the municipal council of 
the city of Keokuk, situated on the Mississippi river, 
having under legislative authority constructed wharves 
on the river-front of the city, and having imposed as 
wharfage fees the sum of " $1 if the tonnage of the 
boat was less than 50 tons," and larger sums for heavier 
tonnage, and the Packet Co., as owner of steamboats 
licensed and enrolled under the act of Congress, 
and plying on the Mississippi river between St. Louis 

1 122 U. S. 326. 3 Barney v. Keokuk, 94 U. S. 324. 

2 Section 32. * 95 U. S. 80. 



106 COMMEECE. 

and St. Paul, and in the course of their voyages land- 
ing at the city wharves at Keokuk, having refused to 
pay the wharfage charges, which were admittedly rea- 
sonable in amount, the city brought in a state court an 
action at law against the Packet Co. to recover the 
amount due ^for wharfage charges, and judgment was 
rendered against the Packet Co. and successively 
affirmed in the state court of last resort and in the 
Supreme Court of the United States, the ground of 
decision being, that wharfage dues are not taxes, that 
is, " impositions by virtue of sovereignty," but they are 
"a charge for services rendered, or for conveniences 
provided," and they are " claimed in right of proprie- 
torship."^ This case is followed and supported by 
Packet Co. v. St. Louis," Vicksburg v. Tobin,^ Packet 
Co. -y. Catlettsburg,"* Transportation Co. v. Parkersburg,^ 
and Ouachita Packet Co. v. Aiken. '^ The last two cases 
are also authorities for the proposition, that wharfage 
dues, like the charges of common carriers, must be 
reasonable, but whether they be in fact reasonable is 
not a question of federal law, nor as such cognizable 
in a court of the United States in cases other than 
those in which the federal court has acquired jurisdic- 
tion by reason of the citizenship of the parties. 
Nevertheless, clear as is the right of a state to erect 
wharves on navigable waters and collect tolls or dues 
for their use, that right cannot be so exercised as to 
discriminate in favour of the products of its own terri- 
tory and against interstate commerce. Thus, in Guy v. 
Baltimore,^ the facts being, that the city of Baltimore 
having, under legislative authority, constructed public 
wharves, and imposed wharfage dues upon, inter alia^ 

1 per Strong, J., p. 84. " 105 U. S. 559. « 121 U. S. 444. 

2 100 U. S. 423. 5 107 U. S. 69. ^ 100 U. S. 434. 

3 100 U. S. 430. 



PILOTAGE. 107 

potatoes not grown in the state of Maryland, and Guy, 
a resident and citizen of the county of Accomac in the 
state of Virginia, having arrived at Baltimore with a 
schooner laden with potatoes grown in the state of 
Virginia, and having, after landing his cargo at the 
city wharves, declined to pay the wharfage dues, the 
city of Bahimore brought an action against Guy in a 
state court to recover the statutory penalty for the non- 
payment of the wharfage dues, judgment was rendered 
against Guy, but reversed in the Supreme Court of the 
United States, on the ground that, under the circum- 
stances of the case, the wharfage dues were exacted not 
as compensation for the use of the city's property, but 
" as a mere expedient or device to accomplish by indi- 
rection what the state could not accomplish by a direct 
tax, namely, build up its domestic commerce by means of 
unequal and oppressive burdens upon the industry and 
business of other states."^ 

46. The result of the cases as to pilotage is, that that 
subject being one primarily of local concern, the states 
may regulate and control it so long as, and to the extent 
that. Congress does not legislate with regard to it ; but 
when Congress does legislate on the subject its regula- 
tion thereof will be of paramount authority. As the 
thirteen original states were existing governments when 
the Constitution was ratified, they all, with the excep- 
tion of New Hampshire, had, before the adoption of the 
Constitution, enacted laws regulating pilotage. The 
act of Congress of 7 August, 1789, section 4,^ pro- 

^ per Harlan, J., at p. 443. Waite, C. J., dissented, p. 444, saying, "th-e 
ctate of Maryland has seen fit to prohibit the City of Baltimore from making 
any such charge for landing and depositing the products of the state. That 
was all the state undertook to do. I am unable to bring my mind to the con- 
clusion that the Constitution of the United States makes this the equivalent 
of a provision that all wharfage at the public wharves belonging to the city 
shall be free so long as the law as it now stands is in force." 

* 1 Stat. 54. 



108 COMMEECE. 

vided, "that all pilots in the bays, inlets, rivers, 
harbours, and ports of the United States shall continue 
to be regulated in conformity with the existing laws of 
the states respectively wherein such pilots may be, or 
with such laws as the states may respectively hereafter 
enact for the purpose, until further legislative provision 
shall be made by Congress." The act of Congress of 2 
March, 1837,^ declared it " lawful for the master or 
commander of any vessel coming in or going out of any 
port, situate upon the waters which are the boundary 
between two states, to employ any pilot duly licensed 
or authorized by the laws of either of the states." In 
his judgment in the License Cases,^ Taney, C. J., said 
that this act was "intended, as it is understood, to alter 
only a single provision of the New York law, leaving 
the residue of its provisions entirely untouched." The 
act of Congress of 30 August, 1852, section 9,^ pro- 
vided, inter alia, that "instead of the present system of 
pilotage " of vessels propelled in whole or in part by 
steam, certain designated inspectors shall license and 
" classify all " " pilots of steamers carrying passengers," 
and declares it " unlawful for any person to employ, or 
any person to serve, as engineer or pilot on any such 
vessel who is not licensed by the inspectors."^ In Gib- 
bons V. Ogden,^ Marshall, C. J., said, "it has been said 
that the Act of 7 August, 1789, acknowledges a concur- 
rent power in the states to regulate the conduct of pilots, 
and hence is inferred an admission of their concurrent 
right with Congress to regulate commerce with foreign 
nations and among the states. But this inference is 
not, we think, justified by the fact. Although Congress 

1 5 Stat. 153. ^ 5 How. 580. * 10 Stat. 61. 

* Sections 4235 et seq., Revised Statutes of the United States, re-enact the 
Act of 1789. 
5 9 Wheat. 207. 



PILOTAGE. 109 

cannot enable a state to legislate, Congress may adopt 
the provisions of a state on any subject. When the 
government of the Union was brought into existence, it 
found a system for the regulation of its pilots in 
full force in every state. The act, which has been 
mentioned, adopts this system, and gives it the same 
validity as if its provisions had been specially made by 
Congress. But the act, it may be said, is prospective 
also, and the adoption of the laws to be made in future 
presupposes the right in the maker to legislate on the 
subject. The act unquestionably manifests an intention 
to leave this subject entirely to the states, until Con- 
gress should think proper to interpose ; but the very 
enactment of such a law indicates an opinion that it 
was necessary : that the existing system would not be 
applicable to the new state of things, unless expressly 
applied to it by Congress. But this section is confined 
to the pilots within the "bays, inlets, rivers, harbours 
and ports of the United States," which are, of course, 
in whole or in part, also within the limits of some par- 
ticular state. The acknowledged power of a state to 
regulate its police, its domestic trade, and to govern its 
own citizens may enable it to legislate on this subject 
to a considerable extent ; and the adoption of its system 
by Congress, and the application of it to the whole 
subject of commerce, does not seem to the court to im- 
ply a right in the states so to apply it of their own 
authority. But the adoption of the state system being 
temporary, being only " until further legislative pro- 
visions shall be made by Congress," shows conclusively 
an opinion that Congress could control the whole sub- 
ject, and might adopt the system of the states, or pro- 
vide one of its own." In his judgment in the License 
Cases,^ Taney, C. J., referring to the pilotage laws^ 

1 5 How. 580. 



110 COMMERCE. 

said, "tliey are admitted on all hands to belong 
to foreign commerce, and to be subject to the 

regulations of Congress Yet they have been 

continually regulated by the maritime states, as fully 
and entirely since the adoption of the Constitution as 
they were before ; and there is but one law of Congress, 
making any specified regulation upon the subject, and 
that passed as late as 1837, and intended, as it is 
understood, to alter only a single provision of the New 
York law, leaving the residue of its provisions entirely 
untouched. It is true, that the Act of 1789 provides 
that pilots shall continue to be regulated by the laws of 
the respective states then in force, or which may there- 
after be passed, until Congress shall make provisions on 
the subject. And undoubtedly Congress had the power, 
by assenting to the state laws then in force, to make 
them its own, and thus make the previous regulations 
of the states the regulations of the general government. 
But it is equally clear that, as to all future laws by the 
states, if the Constitution deprived them of the power 
of making any regulations on the subject, an act of 
Congress could not restore it. For it will hardly be 
contended that an act of Congress can alter the Con- 
stitution, and confer upon a state a power which the 
Constitution declares it shall not possess. And if the 
grant of power to the United States to make regulations 
of commerce is a prohibition to the states to make any 
regulation upon the subject. Congress could no more 
restore to the states the power of which they were thus 
deprived, than it could authorize them to coin money 
OT make paper money a tender in the payment of debts, 
or to do any other act forbidden to them by the Con- 
stitution. Every pilot law in the commercial states has, 
it is believed, been either modified or passed since the 
Act of 1789 adopted those then in force ; and the pro- 



PILOTAGE. I 111 

visions since made are all void if the restriction on the 
power of the states now contended for should be main- 
tained ; and the regulations made, the duties imposed, 
the securities required, and penalties inflicted by these 
various state laws are mere nullities, and could not be 
enforced in a court of justice. It is hardly necessary 
to speak of the mischiefs which such a construction 
would produce to those who are engaged in shipping, 
navigation, and commerce. Up to this time their 
validity has never been questioned. On the contrary, 
they have been repeatedly recognized and upheld by 
the decision of this court." Taney, C J., in thus saying, 
did not, of course, mean that the Supreme Court had 
ever up to that time judicially passed upon the validity 
of state pilotage laws ; he meant only that, in his opinion, 
the constitutionality of such laws was established by 
the principles on which were based the judgments in 
the cases of Willson v. The Blackbird Creek Marsh Co.,^ 
New York v. Miln,^ Houston v. Moore,^ Sturges v. 
Crowninshield,^ and Chirac v. Chirac.^ In Hobart v. 
Drogan,^ where the question at issue was as to the 
right of a pilot to claim salvage, it was argued, " that 
the act of Congress, so far as it adopts the future laws 
to be passed by the states on the subject of pilotage is 
unconstitutional and void, for Congress cannot delegate 
their powers of^ legislation to the states," but the court 
holding the case to be one of salvage, and not of pilot- 
age, declined to express any opinion as to the power of 
the states over pilotage. It was not until 1851, that, in 
the case of Cooley v. The Board of Wardens,'^ the ques- 
tion came before the court for judicial determination. 
The facts of the case were, that a statute of Pennsyl- 
vania, enacted on 2 March, 1803, having, with regard 

1 2 Pet. 251. 5 5 Wheat. 1. » 2 id. 269. '^ 12 How. 299. 

2 11 id. 130. * 4 id. 196. « jq Pet. 109. 



112 COMMEECE. 

to the port of Philadelphia and the navigation of the 
river Delaware, imposed the duty of taking a pilot on 
" every ship or vessel arriving from or bound to any 
foreign port or place, and every ship or vessel, of the 
burden of seventy-five tons or more, sailing from or 
bound to any port not within the river Delaware," and 
provided, in case of the master's refusal or neglect to 
take a pilot, that half pilotage should be forfeited, and 
recovered as pilotage, and the masters of two vessels, 
the Undine and the Consul, having refused to take a 
pilot under the statute, two actions at law were brought 
in a state court by the Board of Wardens against 
Cooley, the consignee of both vessels, and on pleadings^ 
which raised the question of the power of a state to 
regulate pilotage by a statute enacted after the adoption 
of the Constitution, judgment was rendered against 
Cooley in the court of the first instance, and afiirmed in 
the state court of last resort and in the Supreme Court 
of the United States, on the grounds, that the regulation 
of pilotage " demanding that diversity which alone can 
meet the local necessities of navigation," and the Act of 
1789 being an authoritative declaration " that the 
nature of this subject is such that until Congress should 
find it necessary to exert its power, it should be left to 
the legislation of the states," the states may, by legisla- 
tion after as well as before the adoption of the Constitu- 
tion, continue to regulate pilotage, until Congress, in its 
discretion, shall make regulations which shall govern 
pilotage to and from all the ports of the country, 
Curtis, J., said, in the judgment of the court,^ pilotage 
laws " rest upon the propriety of securing lives and 
property exposed to the perils of a dangerous naviga- 
tion, by taking on board a person peculiarly skilled to 
encounter or avoid them ; upon the policy of discourag- 

1 p. 312. 



PILOTAGE. 113 

ing the commanders of vessels from refusing to receive 
such persons on board at the proper times and places ; 
and upon the expediency, and even intrinsic justice, of 
not suffering those who have incurred labour, and ex- 
pense, and danger, to place themselves in a position to 
render important services generally necessary, to go 
unrewarded, because the master of a particular vessel 
either rashly refuses their proffered assistance or, con- 
trary to the general experience, does not need it. There 
are many cases in which an offer to perform, accom- 
panied by present ability to perform, is deemed by law 
equivalent to performance. The laws of commercial 
states and countries have made an offer of pilotage ser- 
vice one of those cases The purpose of the law 

being to cause masters of such vessels, as generally need 
a pilot, to employ one, and to secure to the pilots a 
fair remuneration for cruising in search of vessels, 
or waiting for employment in port, there is an obvious 
propriety in having reference to the number, size, and 
nature of employment of vessels frequenting the port, 
and it will be found, by an examination of the different 
systems of their regulations, which have from time to 
time been made in this and other countries, that the 
legislative discretion has been constantly exercised in 
making discriminations, founded on differences both in 
the character of the trade, and the tonnage of vessels 
engaged therein."^ .... "If the law of Pennsylvania, 
now in question, had been in existence at the date of 
this act of Congress, 1789, we might hold it to have 
been adopted by Congress, and thus made a law of the 
United States, and so valid. Because this act does, in 
effect, give the force of an act of Congress to the then 
existing state laws on this subject, so long as they 
should continue unrepealed by the state which enacted 

1 p. 317. 



114 COMMEECE. 

them. But the law on which these actions are founded 
was not enacted until 1803. What effect then can be 
attributed to so much of the Act of 1789 as declares, 
that pilots shall continue to be regulated in conformity 
' with such laws as the states may respectively here- 
after enact for the purpose, until further legislative 
provisions shall be made by Congress ? If the states 
were divested of the power to legislate on this subject 
by the grant of the commercial power to Congress, it is 
plain that this act could not confer upon them power 

thus to regulate The grant of commercial power 

to Congress does not contain any terms which expressly 
exclude the states from exercising an authority over its 
subject-matter. If they are excluded it must be be- 
cause the nature of the power, thus granted to Con- 
gress, requires that a similar authority should not 

exist in the states Now the power to regulate 

commerce embraces a vast field, containing not only 
many, but exceedingly various subjects, quite unlike in 
their nature; some imperatively demanding a single 
uniform rule, operating equally on the commerce of the 
United States in every port ; and some, like the subject 
now in question, as imperatively demanding that di- 
versity, which alone can meet the local necessities of 
navigation. .... The Act of 1789 contains a clear and 
authoritative declaration by the first Congress, that the 
nature of this subject is such, that until Congress should 
find it necessary to exert its power, it should be left to 
the legislation of the states ; that it is local and not 
national ; that it is likely to be best provided for, not 
by one system or plan of regulations, but by as many 
as the le2:islative discretion of the several states should 
deem applicable to the local peculiarities of the ports 
within their limits It is the opinion of the ma- 
jority of the court that the mere grant to Congress of 



PILOTAGE. 115 

the power to regulate commerce did not deprive the 
states of power to regulate pilots, and that, although 
Congress has legislated on this subject, its legislation 
manifests an intention, with a single exception, not to 
regulate this subject, but to leave its regulation to the 

several states We are of opinion that this state 

law was enacted by virtue of a power, residing in the 
state to legislate: that it is not in conflict with any law 
of Congress : that it does not interfere with any system 
which Congress has established by making regula- 
tions, or by intentionally leaving individuals to their 
own unrestricted action ; that this law is, therefore, 
valid, and the judgment of the Supreme Court of 
Pennsylvania in each case must be affirmed."^ The 
later cases follow in the line laid down by Curtis, J.^ 
In the Steamship Co. v. Joliffe,^ the court held that the 
act of Congress of 30 August, 1852,* does not establish 
pilotage regulations for ports, and that a state statute, 
imposing half pilotage fees upon a steam vessel neglect- 
ing or refusing to take a pilot when coming into a port 
of the state is not in conflict with that act of Congress, 
but Spraigue v. Thompson ^ decides that the Revised 
Statutes of the United States ^ prevent a state from dis- 
criminating in its pilotage regulations in favour of some 
states, and against others, as by requiring vessels of 

^ McLean and Wayne, JJ., dissented, holding that the states could not by- 
statutes enacted subsequently to the adoption of the Constitution, regulate 
pilotage; and Daniel, J., while concurring in the judgment of affirmance, did 
not agree in the reasoning of the majority of the court, as stated by Curtis, J., 
but, on the contrary, held that the regulation of pilotage, being a subject local 
in its nature, was not delegated to Congress by the grant of the power to 
regulate commerce, but remained as an original and inherent power in the 
states. 

2 Steamship Co. v. Joliffe, 2 Wall. 450 ; The China, 7 id. 53 ; Ex parte 
McNeil, 13 id. 236; Wilson v. McNamee, 102 U. S. 572; Spraigue v. Thomp- 
son, 118 id. 90. 

3 2 Wall. 450. 5 118 u. S. 90. 

* 10 Stat. 61. 6 Sections 4237, 4401 and 4444. 



116 COMMEKCE. 

some states to pay half pilotage fees and exempting 
vessels of other states from that requirement, and that a 
vessel under the lawful control and direction of a pilot 
licensed under the laws of the United States, cannot be 
required to take a pilot under the laws of a state, nor be 
subjected to a penalty for the failure or neglect so to do. 
The points of minor importance which have been 
adjudicated in the pilotage cases are, that a state may 
impose upon a vessel neglecting or refusing to take a 
pilot the forfeiture of half pilotage fees, and it may 
exempt from such forfeitures the vessels engaged in a 
particular trade.-^ The forfeiture of half pilotage fees 
being not in the nature of a penalty, but of compensa- 
tion under an implied contract,^ those fees must be paid, 
though the pilot's services were tendered and refused 
before the vessel had come within the jurisdiction of 
the state,^ and although the statute authorizing the 
recovery shall have been re|)ealed after the services of 
the pilot were tendered, and refused, but before the 
action was brought to recover therefor.^ Such a statute 
may impose a compulsory obligation on foreign vessels.^ 
Pilotage fees being matters of admiralty jurisdiction,^ 
the Supreme Court of the United States will not by 
prohibition restrain the admiralty courts from hearing 
and deciding such causes.' 

47. The doctrine of the cases as to state quarantine 
and sanitary regulations is, that a state may prohibit 
the entry into its territory of infected persons or goods, 
and it may provide for an examination of all persons 

^ Cooley V. Board of Wardens, 12 How. 299 ; Steamship Co. v. JolifFe, 2 
Wall. 450 ; Ex parte MacNeil, 13 id. 236 ; Wilson v. McNamee, 102 U. S. 572. 

2 Ex parte MacNeil, 13 Wall. 236. 

3 Wilson V. McNamee, 102 U. S. 572. 

* Steamship Co. v. Joliffe, 2 Wall. 450. 

5 The China, 7 Wall. 53. 

6 Hobart v. Drogan, 10 Pet. 108 ; Ex parte MacNeil, 13 Wall. 236. 

' Ex parte Hagar, 104 U. S. 520 ; Ex parte Pennsylvania, 109 kl. 174. 



QUARANTIKE. 117 

or goods coming into its territory in order to deter- 
mine whether or not they be infected, and in order to 
defray the expenses of such sanitary inspection it 
may collect charges, provided that such charges be 
not in form duties on tonnage, and that they do 
not unnecessarily interfere with foreign and inter- 
state transportation. Marshall, C. J., in his judg- 
ment in Gibbons v. Ogden,^ enumerates " quarantine 
laws" and " health laws of every description" as "com- 
ponent parts of that immense mass of legislation, which 
embraces everything within the territory of a state, not 
surrendered to the general government : all which can 
be most advantageously exercised by the states them- 
selves ;" and he adds,^ " the acts of Congress, passed in 
1796 and 1799,^ empowering and directing the officers 
of the general government to conform to, and assist in 
the execution of the quarantine and health laws of a 
state, proceed, it is said, upon the idea that these laws 
are constitutional. It is, undoubtedly, true, that they do 
proceed upon that idea ; and the constitutionality of 
such laws has never, so far as we are informed, been 
denied. But they do not imply an acknowledgment 
that a state may rightfully regulate commerce with 
foreign nations, or among the states ; for they do not 
imply that such laws are an exercise of that power, or 
enacted with a view to it. On the contrary, they are 
treated as quarantine and health laws, are so denomi- 
nated in the acts of Congress, and are considered as 
flowing from the acknowledged power of a state to pro- 
vide for the health of its citizens. But, as it was 
apparent that some of the provisions made for this pur- 
pose, and in virtue of this power, might interfere with, 
and be affected by, the laws of the United States, made 
for the regulation of commerce, Congress, in that spirit 
of harmony and conciliation, which ought always to 

1 9 Wheat. 203. => p. 205. * 2 Stat. 545 ; 3 id. 126. 



118 COMMEKCE. 

characterize the conduct of governments standmg in the 
relation which that of the Union and those of the states 
bear to each otlier, has directed its officers to aid in the 
execution of these laws ; and has, in some measure, 
adapted its own legislation to this object by making 
provisions in aid of those states. But, in making these 
provisions, the opinion is unequivocally manifested that 
Congress may control the state laws, so far as it may be 
necessary to control them for the regulation of com- 
merce." Title LVIII, of the Revised Statutes of the 
United States, as Miller, J., says, in Morgan v. Louisi- 
ana,-^ referring to state quarantine regulations, shows 
"very clearly the intention of Congress to adopt these 
laws, or to recognize the power of the states to pass 
them." A state may, therefore, in the absence of con- 
flicting federal legislation, make and enforce a quarantine 
regulation requiring all vessels coming into a port of 
the state, to stop at a designated quarantine station, 
there submit to a sanitary examination, and pay there- 
for a fee rated in amount in proportion to the marine 
class to which the vessel may belong,^and equalin amount 
for all vessels of the same class. On the other hand, a 
state cannot, for the purpose of defraying the expenses 
of enforcing her quarantine regulations, impose on 
vessels owned in ports of other states, and entering her 
harbours in the pursuit of commerce, a tax which is 
based on the tonnage of the vessel, as ex gr. a tax at the 
rate of $5 for the first hundred tons and II cents for 
each additional ton,^ for such a tax is a duty on ton- 
nage, and as such prohibited.^ So apprehensive was 
Congress that its legislation in 1799,^ directing the 

1 118 U. S. 465 •'' Morgan v. Louisiana, 118 U. S. 455. 

3 Peete v. Morgan, 19 Wall. 581. 

* In Peete v. Morgan, 19 Wall. 583, Davis, J., said, the power of imposing 
tonnage duties cannot be exercised without the permission of Congress, and 
Congress has never consented that the states should lay any duty on tonnaga 

* 1 Stat. 619. 



QUAEANTINE. 119 

collectors of customs and officers commanding forts and 
revenue cutters to aid in tlie execution of the quaran- 
tine and health laws of the states, rendered necessary 
on account of the j^i'evalence of yellow fever in New 
York, might be construed into an admission of the right 
of the states to lay this duty, that it used the following 
words of exclusion, "that nothing herein shall enable any 
state to collect a duty of tonnage or impost without the 
consent of the Congress of the United States thereto." ^ 
Nor can a state, under the form of sanitary regulations, 
enact statutes which are, in effect, regulations of com- 
merce, either foreign or interstate ; thus, in R. E. v. 
Husen,^ the facts being that the state of Missouri hav- 
ing, by a statute, prohibited the driving or conveyance 
of Texan, Mexican, or Indian cattle into the state 
between the first day of March and the first day of 
November in any year, and having j)ermitted the trans- 
portation of such cattle through the state only on con- 
dition that the transporting agent " shall be responsible 
for all damages which may result from the disease called 
Spanish or Texan fever, should the same occur along 
the line of transportation, and the existence of such 
disease along such route shall be j^rma/xc^^e evidence 
that such disease has been communicated by such trans- 
portation," and the statute having further provided that 
a liability "for all damages sustained on account of dis- 
ease communicated by said cattle " should follow from 
a violation of the statute ; and Husen, having brought 
suit in a state court against the H. & St. J. R. K. to 
recover damages under the statute and having obtained 
judgment, the Suj^reme Court reversed the judgment, 
holding that the statute was void as an attempted regu- 
lation of interstate commerce, inasmuch as it prohibited 
the introduction into the state, not merely of diseased 

^ See supra, Tonnage Duties, Sec. 36. ^ 95 U. S. 465. 



120 COMMEECE. 

cattle, but of all Texan, Mexican, and Indian cattle 
during eight months of each year, and it imposed a 
burden on the transportation of cattle through the state 
in the prosecution of interstate commerce, by subjecting 
the transporting agent to liability for damages caused 
by the communication of disease from such cattle, 
though there might not be any negligence on the part 
of such agent. 

48. Port dues, that is, charges imposed on vessels as 
instruments of commerce, and payable by all vessels 
entering, remaining in, or leaving a port, by reason of 
such entry, stay, or departure, and without regard to 
services rendered to or received by the vessel, are regu- 
lations of commerce, and as such cannot be rightfully 
imposed under state authority.^ Under this rule, as 
expounded in Steamship Co. v. Port Wardens,^ a charge 
of $5 per vessel payable to the wardens " whether called 
on to perform any service or not, for every vessel arriv- 
ing in " the port of New Orleans, was held to be a 
wrongful imposition. So also, under pretence of mak- 
ing port regulations, a state cannot rightfully vest in 
the master and wardens of a port, or in his deputies, a 
monopoly of the survey of the hatches of sea-going 
vessels coming to the port, or of damaged goods, on such 
vessels, for such a monopoly is a burden ujDon, and 
therefore a regulation of, foreign and interstate com- 
merce.^ The prohibition of state duties on tonnage* 
forbids the imposition by a state of port dues in the 
form of a tax of $5 for the first hundred tons and Ih 
cents for each additional ton payable by vessels owned 
in another state and entering a harbour of the taxing 

^ Such dues are also open to objection as duties on tonnage. See. 36. 
= 6 Wall. 31. 

^ Foster v. Master and Wardens of the Port of New Orleans, 94 U. S. 246. 
* Section 36. 



PORT EEGULATIOIfS. 121 

state in tlie pursuit of commerce/ and also of a tax 
similarly proportioned on " all steamboats which shall 
moor or land in any part of" a state port.^ 

49. A state may establish port regulations, prescrib- 
ing where a vessel may lie in harbour, how long she 
may remain there, and what lights she must show at 
night ; thus in the James Gray v. The John Frazer,^ 
an admiralty cause of damage resulting from a collision 
of the two vessels in Charleston harbour, that one was 
held to be in fault, which had by its failure to display 
lights in conformity with the regulations of the port 
imposed under authority of the state, been the cause 
of the collision. Taney, C. J., said,* "regulations of 
this kind are necessary and indispensable in every 
commercial port, for the convenience and safety of 
commerce, and the local authorities have a right to pre- 
scribe at what wharf a vessel may lie, and how long she 
may remain there, where she may unload or take on 
board particular cargoes, where she may anchor in the 
harbour, and for what time, and what description of 
light she shall display at night to warn the passing 
vessels of her position, and that she is at anchor and 
not under sail. They are like to the local usages of 
navigation in different ports, and every vessel, from 
whatever part of the world she may come, is bound to 
take notice of them and conform to them. And there 
is nothing in the regulations referred to in the port of 
Charleston, which is in conflict with any law of Con- 
gress regulating commerce, or with the general admi- 
ralty jurisdiction conferred on the courts of the United 
States." Ostensibly, on the same principle, it was held 
in New York v. Miln,^ that a state may require under 

1 Peete v. Morgan, 19 Wall. 581. 

'^ Cannon v. New Orleans, 20 Wall. 577. 

^ 21 How. 184. * p. 187. 5 n p^^. 102. 



122 COMMEECE. 

a penalty the master of every passenger-carrying vessel 
on arriving at any port within the state to report to 
the state authorities the name, place of birth, last legal 
settlement, age, and occupation of every passenger, 
the statute under consideration being one enacted by 
New York in 1824, and the court affirming its validity 
on the ground that it was a regulation, not of commerce,, 
but of police, and as such falling within the reserved 
powers of the state. The authority of the case is, how- 
ever, much shaken by the admirably reasoned dissent- 
ing judgment of Story, J., with whose conclusions Mar- 
shall, C. J., concurred,^ and the result reached by the 
court is possibly inconsistent with the later cases of 
Sinnot v. Davenport,^ Foster v. Davenport,^ and the 
yet later cases, which hold that a state cannot, di- 
rectly or indirectly, tax the transportation of passen- 
gers coming from foreign countries.^ 

50. Section 9 of article I of the Constitution declares 
that " no preference shall be given by any regulation of 
commerce or revenue to the ports of one state over those 
of another." This prohibition is, obviously, a restraint 
upon the exercise of power by the United States and 
not by the states ; and it is intended to guard against 
partiality and favoritism in customs regulations. It 
has, therefore, been held that the diversion of water 
from one navigable river to another, as the result of 
congressional legislation in the exercise of the power to 
regulate commerce, is not a preference to the ports of 
one state over those of another,^ and that the legaliza- 
tion by an act of Congress of a bridge over navigable 
waters, though indirectly obstructing the commerce of 

1 p. 161. 3 22 How. 224. Supra, sec. 33. 

^ 22 How. 227. * Supra, sec. 37. 

^ South Carolina v. Georgia, 93 U. S. 4. 



EAILWAY TEANSPOETATION. 123 

a port in another state, is not a violation of the consti- 
tutional prohibition.^ 

51. The construction of railways, and the develop- 
ment of systems of through transportation have required 
the court to consider in several cases the restrictive 
powers of the government of the United States and of 
the states with regard to the interstate transportation of 
passengers and goods by railway. In 1824, Marshall, 
C. J., incidentally referring in Gibbons v. Ogden ^ 
to the then ordinary appliances of interstate transporta- 
tion, enumerated "turn-pike roads," etc., as "component 
parts " of " that immense mass of legislation, which 
embraces everything within the territory of a state, not 
surrendered to the general government." In the same 
case,^ Johnson, J., said, " as to laws affecting ferries, 
turnpike roads, and other subjects of the same class, 
so far from meritiug the epithet of commercial regula- 
tions, they are, in fact, commercial facilities, for which, 
by the consent of mankind, a compensation is paid, 
upon the same principle, that the whole commercial 
world submit to pay light money to the Danes." In 
Searight v. Stokes ;^ Neil v. Ohio,^ and Achison v. Hud- 
dleson,® it was held that a state, through which the 
Cumberland Koad passed,'^ could not tax the coaches 
carrying the mail, nor the persons traveling in the 
coaches thereon on the service of the United States, but 
the exemption from taxation was, in the several judg- 
ments of the court, based exclusively upon the terms of 
the contracts between the United States, and the states 
of Pennsylvania, Maryland, and Ohio, as made by the 

1 Penna. v. W. & B. Bridge Co., 18 How. 421, 423. 

2 9 Wheat. 203. 5 3 How. 720. 

3 p. 23.5. 6 12 How. 293. 
* 3 How. 151. 

' That road having been originally constructed by the government of the 
United States with the consent of the states through which it passed. 



124 COMMEECE. 

statutes of those states authorizing the construction of 
the road within their respective territories. The result 
of the cases which have directly dealt with the subject 
of the interstate transportation of passengers and goods 
by railways is, that, while a state may, directly or indi- 
rectly, provide facilities of transportation, and charge 
tolls for the use of such facilities, and while a state may, 
in the exercise of the police power, reasonably regulate 
interstate transportation by railways, so far as is neces- 
sary for the protection of its citizens, provided that such 
police regulations do not unnecessarily obstruct the com- 
merce thus regulated, and while a state may make the 
payment of a license fee a condition precedent to the 
transaction within the state of the business of making 
contracts for interstate transportation ; and while a state 
may tax the capital stock of corporations created by it, 
and authorized to transport passengers and freight to 
and from the state ; a state, nevertheless, cannot obstruct 
or embarrass interstate transportation by its taxation of 
passengers per capita, or of freight by the pound moved, 
or of the appliances of transportation permitted to be used 
by a foreign corporation within the state, or of the gross 
receipts of transportation as received either by a foreign 
corporation or a corporation created by the state. 

52. The first branch of the proposition, that which 
affirms the right of the state, as the owner of an artificial 
highway, to charge tolls for the use of that highway, is 
supported by the case of B. & O. K. R. v. Maryland,^ 
in which the facts were, that a statute of the state of 
Maryland having authorized the B. & O. K. R. to con- 
struct a line of railway between Baltimore in that state 
to Washington in the District of Columbia, and to 
transport passengers thereon for a charge not exceeding 
$2.50 for each person and to pay semi-annually to the 

1 21 Wall. 456. 



RAILWAY TRANSPORT A TION. 125 

state "one-fiftli of tlie whole amount wliich may be 
received for the transportation of passengers during the 
preceding six months," and the state having brought in 
one of its courts an action against the company to re- 
cover the amount of a semi-annual payment which the 
company had refused to make, judgment was rendered 
in favour of the state, and affirmed by the court, on 
the ground, as stated in the judgment of Bradley, J.,^ 
that the payment required of the company was not a 
tax on the interstate transportation of persons, but a 
charge of toll for the use of imjoroved facilities of 
travel wliich tlie state by its agent, the railroad com- 
pany, had constructed, and for whose use it had a right 
to charge. Miller, J., dissented,^ on the ground, that 
the state statute " was intended to raise a revenue for 
the state from all persons coming to Washington by 
rail," and, therefore, " void within the principle laid 
down by the court in Crandall v. Nevada."^ If, in 
connection with this case, the case of the State Freight 
Tax"^ be considered, the distinction will be clearly ap- 
prehended between a toll charged in virtue of ownership, 
and a tax imposed in the exercise of sovereignty. 

53. As to the second branch of the proposition, that 
which relates to the exercise by the states of the power 
of police regulation with regard to interstate commerce 
conducted by railways, there has been some variance of 
judicial opinion ; but the deduction to be drawn from 
the cases is, that while a state may, in the exercise of its 
police power, reasonably regulate interstate transportation 
by railway, so far as may be necessary for the protection 
of the safety, health, and comfort of its citizens, it may 
not by such regulations unnecessarily embarrass or 
obstruct interstate railway transportation. In Railway 

1 p. 470 to 473. 3 6 Wall. 35, infra, sec. 54. 

2 p. 475. * 15 Wall. 232, wfra, sec. 54. 



126 COMMEECE. 

Company v. Fuller,^ the facts were, that the state of 
Iowa having, by a statute of 1862, required, under a 
penalty, all railroad companies to fix annually their 
rates of fare and freight, to post the same in their 
stations and depots, and not to charge in excess thereof, 
and the C & N. W. R. K., a corporation chartered 
by the state of Illinois, and operating under due 
authority a line of railway through Illinois, Iowa, and 
other states, having duly posted its rates of freight at 
its station at Marshalltown in Iowa, having transported 
certain goods for Fuller from Chicago in Illinois to 
Marshalltown, and having charged him therefor freight 
in excess of its posted rate. Fuller brought an action 
against the company to recover the statutory penalty, 
and the company defended on the ground that the 
state statute was void as an attempted regulation of 
interstate commerce, but the court sustained the con- 
stitutionality of the statute as a police regulation. 
Swayne, J., said,^ " no discrimination is made between 
local and interstate freights, and no attempt is made to 
control the rates that may be charged. It is only 
required that the rates shall be fixed, made public, 
and honestly adhered to. In this there is nothing 
unreasonable or onerous. The public welfare is pro- 
moted without wrong or injury to the company. The 
statute was deemed to be called for by the interests 
of the community to be affected by it, and it rests upon 
a solid foundation of reason and justice." The court 
having held in Munn v. Illinois,^ that a state might 
regulate the rates charged by a private warehouse for 
the storage of grain, notwithstanding the fact that 
grain was stored therein in course of interstate trans- 
portation, the same doctrine was in C, B. & Q. R. R. 
V. Iowa,* applied to interstate transportation by railway. 

1 17 Wall. 560. 2 p. 567. « 94 U. S. 113. ^ 94 U. S. 165. 



EAILWAY TRANSPORTATION. 127 

The facts were that the C. B. & Q. R. R. Co., a corpor- 
ation created by the laws of the state of Illinois, and op- 
erating, as lessee, a line of railway constructed by the B. 
& M. R.. R. in the state of Iowa, and carrying on that 
line goods and passengers to and from states other than 
Iowa, filed its bill in equity in the federal court of the 
first instance to enjoin the Attorney-General of Iowa 
from proceeding against it for charges made in violation 
of a statute enacted by the state of Iowa in 1874, which 
fixed the maximum rates of fare and freight for all 
railways within the state, and the court affirmed a 
decree dismissing the bill, inte?" alia, on the ground, as 
stated by Waite, C. J.,^ that the B. & M. line, like the 
warehouse in Munn v. Illinois, "is situated within the 
limits of a single state. Its business is carried on there, 
and its regulation is a matter of domestic concern. It 
is employed in state as well as in interstate commerce, 
and, until Congress acts, the state must be permitted to 
adopt such rules and regulations as may be necessary 
for the promotion of the general welfare of the people 
within its own jurisdiction, even though in so doing 
those without may be indirectly affected."^ The view 
expressed in this case was reiterated in Peik v. C. & N. 
W. Ry.^ The next case is R. R. v. Husen,^ in which 
the court held void as an attempted regulation of inter- 
state commerce a statute of the state of Missouri, pro- 
hibiting the driving of Texan, Mexican, or Indian cat- 
tle into the state between the first day of March and 
the first day of November in any year, and permitting 
the transportation of such cattle through the state only 
on condition that the transporting agent " shall be 
responsible for all damages which may result from the 

1 p. 163. - ^ Field and Strong, JJ., dissented. 

3 94 U. S. 164, Field and Strong, JJ., dissenting. 

4 95 U. S, 465. 

\ 



128 COMMEECE. 

disease called tlie SpanisH or Texan fever, should the 
same occur along the line of trasportation." ^ In the 
first of the Hailroad Commission Cases, Stone v. Far- 
mers' Loan and Trust Co.,^ Stone v. I. C. K. E..,^ and 
Stone V. N. O. & N. E. K. R.,* wherein the question was 
as to the validity of a statute of Mississippi, forbidding 
discriminations in railway transportation, and constitut- 
ing a commission with power to revise the tariff of rail- 
way charges and to enforce the statute, Waite, C. J., said,^ 
"the statute makes no mention of persons or property 
taken up without the state, and delivered within, nor 
of such as may be taken up within and carried without. 
As to this, the only limit on the power of commissioners 
is the constitutional authority of the state over the sub- 
ject. Precisely all that may be done, or all that may not 
be done, it is not easy to say in advance. The line between 
the exclusive power of Congress, and the general powers 
of the state in this particular, is not everywhere dis- 
tinctly marked, and it is always easier to determine 
when a case arises whether it falls on one side or on the 
other, than to settle in advance the boundary, so that it 
may be, in all respects, strictly accurate. As yet the 
commissioners have done nothing. There is, certainly, 
much they may do in regulating charges within the 
state, which will not be in conflict with the Constitution 
of the United States. It is to be presumed they will 
always act within the limits of their constitutional 
authority. It will be time enough to consider what may 
be done to prevent it when they attempt to go beyond." 
In W. St. L. & P. Ry. v. Illinois,'^ the facts were, that 
a statute of Illinois having enacted that " if any rail- 
road corporation shall charge, collect, or receive for the 

1 Supra, sec. 47. * 116 U. S. 352. 

2 116 U. S. 307. 5 p. 335. 

3 116U. S. 347. «n8U. S. 557. 



RAILWAY TEANSPOETATION. 129 

transportation of any passenger or freight of any 
description upon its railroad, for any distance within the 
state, the same or a greater amount of toll or compensa- 
tion than is at the same time charged, collected, and 
received for the transportation in the same direction of 
any passenger or like quantity of freight of the same 
class over a greater distance of the same road, all such 
discriminating rates, charges, collections, or receipts, 
whether made directly, or by means of rebate, draw- 
back, or other shift or evasion, shall be deemed and 
taken against any such railroad corporation as prima 
facie evidence of unjust discrimination," and the W. 
St. L. cfe P. Ry. having charged Elder & McKinney at 
the rate of 15 cents per 100 pounds for the transporta- 
tion of certain goods from Peoria in the state of Illinois 
to New York in the state of New York, and having on 
the same day charged Bailey at the rate of 25 cents per 
100 pounds for the transportation of like goods from 
Gilman in the state of Illinois to the city of New York, 
the distance between Gilman and New York being less 
by 86 miles than that between Peoria and New York, 
an action at law was brought in the name of the 
state of Illinois against the railway company to recover 
the amount of a statutory j)enalty in a court of the state, 
and a judgment rendered therein in favour of the state 
was reversed by the court, on the grounds, as stated by 
Miller, J., that " the right of continuous transportation 
from one end of the country to the other is essential in 
modern times to that freedom of commerce from the 
restraints which the state might choose to impose upon 
it," and that, the power of regulating interstate com- 
merce vested by the Constitution in Congress would 
fail of its intended object, " if, at every stage of the 
transportation of goods and chattels through the 
country, the state, within whose limits a part of this 

9 



130 COMMEECE. 

transportation must be done, could impose regulations 
concerning the price, compensation, or taxation, or any- 
other restrictive regulation interfering with and seriously 
embarrassing this commerce,"^ and that "a statute of a 
state, which attempts to regulate the charges by rail- 
road companies within its limits, for a transportation 
which constitutes a part of commerce among the states," 
cannot be a " valid law,'*^ because " this species of regu- 
lation is one which must be, if established at all, of a 
general and national character, and cannot be safely and 
wisely remitted to local rules and local regulations." In 
the judgment in this case. Miller, J., disposed of the 
case of Munn v. Illinois and the Granger Cases by say- 
ing,^ that, " although as incidental to the question of an 
impairment of the obligation of a contract alleged to 
subsist between the state and the railway, the question 
of the exclusive right of Congress to make such regula- 
tions of charges as any legislative power had the right 
to make, to the exclusion of the states, was presented, 
it received but little attention at the hands of the court," 
and he added,^ that " it is not, and never has been, the 
deliberate opinion of a majority of this court that a 
statute of a state, which attempts to regulate the fares 
and charges by railroad companies within its limits for 
a transportation, which constitutes a j)art of commerce 
among the states, is a valid law." Waite, C. J., and 
Bradley and Gray, JJ., dissented, on the grounds, as 
stated by Bradley, J.,^ that " all local arrangements 
and regulations respecting highways, turnpikes, rail- 
roads, bridges, canals, ferries, dams, and wharves, within 
the state, their construction and repair, and the charges 
to be made for their use, though materially affecting 

1 p. 573. * p. 575. 

2 p. 575. ^ p. 581. 

3 p. 569. 



RAILWAY TEANSPORTATION. 131 

commerce, both internal and external, and thereby 
incidentally operating to a certain extent as regulations 
of interstate commerce, were within the power and juris- 
diction of the several states," and that Peik v, C. & N. 
W. Ry., was a conclusive authority in support of the 
judgment of the court below. 

54. In considering the limits within which a state 
may tax the interstate transportation of passengers and 
goods by railway, those cases will first be cited in which 
state taxation has been sustained. In the State Tax on 
Kailway Gross Keceipts,^ the question was as to the 
validity of a statute of Pennsylvania, imposing on all 
transportation companies a " tax of three-fourths of one 
per centum upon the gross receipts of said company," 
payable semi-annually, so far as such gross receipts 
were derived from interstate transportation of goods, 
and the majority of the court in a judgment, read by 
Strong, J., sustained the tax in question because by its 
being "laid upon a fund which has become the property 
of the company, mingled with its other property, and 
possibly expended in improvements, or put out at in- 
terest," it was not taxation of the goods carried, nor the 
freight received therefor, nor in any sense a regulation 
of interstate commerce. Miller, Field, and Hunt, JJ., 
dissented, on the ground that, while railways may be 
taxed ^ " on their capital stock, on their property, real 
and personal, and in any other way, that does not im- 
pose a burden on transportation between one state and 
another," yet their business, so far as regards the trans- 
portation of persons and property to and from other 
states, being in itself commerce, is by the Constitution 
exempted from taxation, or other regulation under state 
authority. Miller, J., added,^ "I lay down the broad 
proposition that by no device or evasion, by no form of 

1 15 Wall. 284. ^ p 299. 3 p, 299. 



132 COMMEECE. 

statutory words, can a state compel citizens of other 
states to pay to it a tax, contribution, or toll, for the 
privilege of having their goods transported through 
that state by the ordinary channels of commerce. And 
that this was the purpose of the framers of the Consti- 
tution I have no doubt; and I have just as little doubt 
that the full recognition of this principle is essential to 
the harmonious future of this country now, as it was 
then. The internal commerce of that day was of small 
importance, and the foreign was considered as of great 
consequence. But both were placed beyond the power 
of the states to control. The interstate commerce to- 
day far exceeds in value that which is foreign, and it is 
of immense importance that it should not be shackled 
by restrictions imposed by any state in order to place 
on others the burden of supporting its own government,, 
as was done in the days of the helpless confederation. I 
think the tax on gross receipts is a violation of the 
federal Constitution, and, therefore, void." It must be 
observed that the authority of this case was shaken by 
Fargo V. Michigan,^ and that it has been overruled by 
the case of the P. & S. S. S. Co. v. Pennsylvania.^ 

The next case is Osborne v. Mobile,^ in which the 
facts were, that an ordinance of the city of Mobile, in 
the state of Alabama, requiring under a penalty every 
express or railway company doing in that city a busi- 
ness extending beyond the limits of the state to pay an 
annual license fee of $500, and requiring such com- 
panies doing business not extending beyond the state 
or the city to pay lesser license fees, and Osborne, an 
agent resident in Mobile of the Southern Express Com- 
pany, a corporation chartered by the state of Georgia, 
but doing in Mobile business within the terms of the 
ordinance by making contracts and receiving goods for 

1 121 U. S. 230. ^ 122 U. S. 326. ^ 16 Wall 479. 



EAILWAY TRANSPOETATION. 133 

transportation from Mobile to points without the state 
of Alabama, having been fined for transacting business 
for his company in violation of the ordinance, the court 
sustained the validity of the ordinance in a judgment, 
read by Chase, C. J., on the ground that the license fee 
in question was not a burden on interstate commerce, 
but was an exercise by the state of its general authority 
to tax persons, property, business, or occupations within 
its limits. In the Delaware R. R. Tax Case,^ the facts 
were, that the P., W. & B. E,. K. having been duly 
formed by the consolidation of companies severally in- 
corporated by the states of Pennsylvania, Delaware, 
and Maryland, and having constructed and operated a 
line of railroad running through the state of Delaware, 
and a statute of that state, having required each of its 
railroads to pay an annual " tax of one-fourth of one 
per cent, of the actual cash value of every share of its 
capital stock," the P., W. & B. R. B. resisted payment 
of the tax on several grounds, and, inter alia, on the 
ground that the tax imposed a burden on interstate 
commerce, but the court held, in a judgment, read by 
Field, J., that^ while the tax indirectly affected com- 
merce in "just the same way and in no other, that tax- 
ation of any kind necessarily increases the expenses 
attendant upon the use or possession of the thing 
taxed," yet that " the exercise of the authority which 
every state possesses to tax its corporations and all 
their property, real and personal, and their franchises, 
and to graduate the tax uj)on the corporations according 
to their business or income, or the value of their prop- 
erty, when this is not done by discriminating against 
rights held in other states, and the tax is not on 
imports, exports, or tonnage, or on transportation to 
other states, cannot be regarded as conflicting with any 

1 Minot V. p., W. & B. E. E. et al., 18 Wall. 206. « p_ 232. 



1 34 COMMEECE. 

constitutional power of Congress." The cases in 
which taxation of transportation has been held to 
be invalid will now be cited. The first case is 
Crandall v. Nevada/ in which the question was as to 
the validity of a statute of Nevada, imposing "a capita- 
tion tax of one dollar upon every person leaving the 
state by any railroad, stage, coach, or other vessel 
engaged or employed in the business of transporting 
passengers for hire," the court unanimously held the 
statute to be void, the majority of the judges, in a 
judgment read by Miller, J., intimating, as was subse- 
quently decided in Woodruff v. Parham,^ that the con- 
stitutional prohibition of state taxation of imports or 
exports has exclusive reference to foreign commerce, 
and also expressing the opinion, which has been over- 
ruled in all the subsequent cases, that " as the tax does 
not itself institute any regulation of commerce of a 
national character or which has an uniform operation 
over the whole country, it is not easy to maintain, in view 
of the 23rinciples on which those cases ^ were decided, 
that it violates the commerce clause of the Consti- 
tution," but resting the conclusions as to the invalidity 
of the statute on the ground, that a state tax on the 
interstate transportation of passengers was void as an 
interference with the freedom of transit of citizens ta 
the seat of government of the United States, and to the 
federal offices and the ports of entry in the several 
states, and as a consequent infringement upon the 
federal supremacy. Chase, C. J., and Clifford, J., while 
concurring in the judgment of the court, dissented from 
the reasoning on which the majority of the court were 
agreed, and held that the statute was unconstitutional 

1 6 Wall. 35. 2 8 Wall. 123. 

^ The Passenger Cases, 7 How. 283 ; Cooley v. Board of Wardens, 12 id. 
299 ; Gilman v. Philadelphia, 3 Wall. 713. 



EAILWAY TEAIfSPOKTATION. 135 

because it imposed " a burden upon commerce among 
the several states." Curiously enough, Crandall v. 
Nevada is constantly referred to in the later judgments 
of the court as if it had been decided on the ground 
taken in the dissenting judgment of Chase, C. J., and 
Clifford, J. Next comes the case of The State Freight 
Tax,^ in which a statute of Pennsylvania having imposed 
on all freight transporting companies a tax, varying 
according to the character of freight transported in rate 
from 2 to 5 cents for each- 2,000 pounds of freight 
moved without regard to distance, the question was 
whether the statute was constitutional, so far as it 
affected freight taken up within the state and carried 
out of it, or taken wp without the state and brought 
within it, and the court held that the statute was void 
as an attempted regulation of interstate commerce. 
Strong, J., in delivering the judgment of the court, said,^ 
" we concede the right and power of the state to tax the 
franchises of its corporations, and the right of the owner 
of artificial highways, whether such owners be the state, 
or grantees of franchises from the state, to exact what 
they please for the use of their ways. That right is an 
attribute of ownershij?. But this tax is not laid upon 
the franchises of the corporation, nor upon those who 
hold a part of the state's eminent domain. It is laid 
upon those who deal with the owners of the highways 
or means of conveyance. The state is not herself the 
owner of the roadways, nor of the motive power. The 
tax is not compensation for services rendered by her, or 
by her agents. It is something beyond the cost of 
transportation or the ordinary charges therefor. Hav- 
ing no ownership in the railroads or canals, the state has 
no title to their incomes, except so far as she has reserved 
it in the charters of the companies. Tolls and freights 

1 15 Wall. 232. ' p. 277. 



186 COMMERCE. 

are a compensation for services rendered or facilities 
furnished to a passenger or transporter. These are not 
rendered or furnished by the state. A tax is a demand 
of sovereignty ; a toll is a demand of proprietorship. 
The tax levied by this act is, therefore, not a toll. It 
is not exacted in compensation for the use of the road- 
way ; and if it were, the right to make terms for the use 
of the roadway is in the grantee of the franchises, not 
in the grantor. But, in truth, the state has no more 
right to demand a portion of the tolls which the 
grantees of her franchises may exact, than she would 
have to demand a portion of the rents of the land which 
she had sold. She may tax by virtue of her sover- 
eignty, and measure the tax by income, but the income 
itself is beyond her reach." Swayne and Davis, JJ., 
dissented, on the grounds that the tax in question was 
" imposed on the business of those required to pay it," 
and that the specification of tonnage was " only the mode 
of ascertaining the extent of the business," no discrimi- 
nation being " made between freight carried wholly 
within the state, and that brought into or carried out 
of it." In Erie Railway v. Pennsylvania,^ the question 
was as to the validity of the same tax as affecting a rail- 
way corporation chartered by the state of New York, 
but authorized by statutes of Pennsylvania to construct 
a portion of its line within that state, and the court held 
the tax void. In Pickard v. Pullman Southern Car 
Co.,^ the facts were that the Constitution of the state of 
Tennessee, having authorized the state legislature to tax 
*' privileges " in its discretion, and a statute of the state 
having declared " the running and using of sleeping- 
cars or coaches on railroads in Tennessee not owned by 
the railroads upon which they are run or used " to be a 
" privilege," and as such to be subject to an annual tax 

1 15 Wall. 282, note. ^ 117 U. S. 34. 



EAILWAY TRANSPOETATION. 137 

of $50 for eacli car, and the Pullman Southern Car Co., 
a cor^Doration created by the state of Kentucky and 
having its principal office at Louisville in that state, 
being the owner of certain sleeping-cars, leased them to 
certain railroad companies who used them in the trans- 
portation of passengers into, through, or out of the 
state of Tennessee, the car company receiving the extra 
fare paid by the passengers for berths and seats in the 
cars. The state of Tennessee having demanded from 
the Car Co. payment of the " privilege " tax, it was 
paid under protest, and the company having brought 
an action against the State Comptroller to recover the 
amount of the tax, a judgment in its favour was af- 
firmed by the court, on the grounds, as stated by Blatch- 
ford, J., that the tax was a charge upon the interstate 
transportation of passengers, and, therefore, void as an 
attempted regulation of interstate commerce.^ In Fargo 
V. Michigan,^ the facts were that the, state of Michigan 
having by statute imposed a tax on the gross receipts 
of corporations "engaged in the business of running 
cars over any of the railroads of this state," and the 
Merchants' Dispatch Transportation Co., a corpora- 
tion organized under the laws of the state of New 
York, being the owner of certain freight cars which 
were used for the transportation of freight from points 
without the state of Michigan to points within that 
state, and from points within that state to points 
without that state, and also between other states but 
passing through the state of Michigan, and having, 
under protest, made return to the commissioner of rail- 
roads of the state of Michigan of its gross recei^^ts, 
including inter alia a sum of $28,890.01 "received for 

1 In Tennessee v. P. S. C. Co., 117 U. S. 51, the doctrine was reiterated with 
regard to an annual " privilege " tax of $75 on each sleeping-car imposed by 
the Tennessee statute' of 1881. 

2 121 U. S. 230. 



138 COMMEECE. 

the transportation of freight from points without to 
points within the state of Michigan, and from points 
within to points without that state," filed in a court of 
the state of Michigan, its bill in equity against the 
Auditor-General of Michigan, praying an injunction to 
restrain him from collecting the tax on those gross re- 
ceipts, and a decree dismissing the plaintiff's bill was 
reversed by the court, in a judgment delivered by Mil- 
ler, J., on the ground that the statute of Michigan was^ 
so far as it taxed receipts from interstate commerce, void 
as an attempted regulation thereof, the case of the State 
Tax on Railway Gross Receipts ^ being distinguished by 
the facts, that the corporation taxed in that case was a 
corporation exercising a franchise granted to it by the 
taxing state, and, as such, taxable by that state, and its 
gross receipts having passed into the treasury of the cor- 
poration were as much subject to taxation as any other 
money within the state, whereas, in the case at bar, the 
corporation whose gross receipts were sought to be 
reached was a corporation of a state other than the 
taxing state, and, "the money which it received for 
freight carried within the state probably never was 
within the state, being paid to the company, either at 
the beginning or the end of its route, and certainly, at 
the time the tax was levied, it was neither money nor 
property of the corjioration within the state of Michi- 
gan." The case of the Philadelphia and Southern 
Steamship Co. v. Pennsylvania,^ though not a case of 
railway transportation, must be here referred to, for it 
overrules the case of the State Tax on Railway Gross 
Receipts.^ The facts were, that a statute of Pennsyl- 
vania enacted in 1877, having imposed upon, inter alia, 
steamboat companies, doing business in the Common- 
wealth and in any way engaged in the business of 

1 15 V^all 284. ^ 122 U. S. 326. ^ 15 y^^^l. 284. 



RAILWAY TRANSPORTATION. 139 

transporting freight or passengers, a tax upon the gross 
receipts of the company for tolls and transporta- 
tions, and the Philadelphia and Southern Steamship 
Company, a corporation created by the state of Pennsyl- 
vania, and engaged in the business of operating sea- 
going steamships enrolled, registered, and licensed under 
the laws of the United States for the coasting or foreign 
trade of the United States, and engaged in the business 
of ocean transportation of passengers and freight between 
different states of the United States and between the 
United States and foreign countries, having resisted 
payment of the tax in question, the court held that on 
the facts thus stated the company was not liable, 
Bradley, J. delivering judgment, and holding that 
taxation of ocean transportation " either by its tonnage, 
or its distance, or by the number of trips performed, or 
in any other way, would certainly be a regulation of 
the commerce, a restriction upon it, a burden upon 
it ;"^ that foreign commerce having been fully regulated 
by Congress, " any regulations imposed by the states 
upon that branch of commerce would be a palpable 
interference," and that in whatever respects Congress 
has not regulated interstate commerce, "its inaction 
. . . is equivalent to a declaration that it shall be 
free, in all cases where its power is exclusive ; and its 
power is necessarily exclusive wherever the subject- 
matter is national in its character and properly admits 
of only one uniform system ;" that "interstate commerce 
carried on by ships on the sea is surely of this charac- 
ter;" and that the state cannot tax such transportation, 
nor the fares and freights received therefor. Bradley, 
J., then dealt with the case of the State Tax on Rail- 
way Gross Receipts,^ and quoting in substance, the first 
ground on which the judgment in that case was based, 

1 p. 336. 2 15 ^Yall. 284. 



140 COMMEECE. 

namely, " that the tax being collectible only once in six 
months, was laid upon a fund which had become the 
property of the company, mingled with its other prop- 
erty, and incorporated into the general mass of its 
property, possibly expended in improvements, or other- 
wise invested," he replied,^ "the tax in the present case 
is laid upon the gross receipts from transportation as 
such. Those receipts are followed and caused to be 
accounted for by the company, dollar for dollar. It is 
those specific receipts, or the amount thereof, which is 
the same thing, for which the company is called on to 
pay the tax. They are taxed not only because they are 
money, or its value, but because they were received for 
transportation. ... If such a tax is laid, and the 
receipts taxed are those derived from transporting goods 
and passengers in the way of interstate or foreign com- 
merce, no matter when the tax is exacted, whether at 
the time of realizing the recei23ts, or at the end of six 
months or a year, it is an exaction aimed at the com- 
merce itself, and it is a burden upon it, and seriously 
affects it." Bradley, J., next met the second ground 
taken in the case of the " State Tax on Eailway Gross 
Receipts," namely that the tax was imposed " upon the 
franchise of the corporation granted to it by the state," 
and, in reply to that, while conceding, that^ "the cor- 
porate franchises, the property, the business, the income 
of corporations created by a state may undoubtedly be 
taxed by the state," he pointed out, that " a tax on the 
franchise of doing business, which, in this case, is the 
business of transportation in carrying on interstate 
and foreign commerce, would clearly be unconstitu- 
tional."^ 

56. Congress, by the Act of 24 July, 1866,^ authorized 

^ p. 341. ' p. 342. 

2 p; 345. * 14 Stat. 221, Kev. Stat. Sec. 5263 ef seq. 



TELEGRAPHS. 141 

any telegraph company organized under the laws of 
any state, " to construct, maintain, and operate lines of 
telegraph, through and over any portion of the public 
dominion of the United States, over and along any of 
the military or jDost roads of ^ the United States which 
may have been, or may hereafter be declared such by 
act of Congress, and over, under, or across the navi- 
gable streams or waters of the United States," upon 
certain conditions, including, inter alia, a concession by 
the company of priority to government messages at 
rates to be fixed annually by the Postmaster General, a 
reservation to the government of the privilege of pur- 
chasing the lines, property, and effects of the company 
at an appraised value, and a written acceptance by the 
company of the restrictions and obligations of the act. 
This act has been subjected to judicial consideration in 
three cases. In P. T. Co. v. W. U. T. Co.,' the facts 
were that the state of Florida had by an act of 1866 
granted to the P. T. Co. a monopoly of the business of 
telegraphing, and the W. U. T. Co., having in 1867 
accepted the terms imposed by the act of Congress, had 
in 1874 begun under a license from the P. & L. P. R. 
Co. the erection of a telegraph line upon the right of 
way of that railway, the railway having also assigned 
to the W. U. T. Co. rights vested in it by statutes of 
the state of Florida enacted in 1873 and 1874, and 
authorizing it to construct, maintain, and operate a 
telegraph line along the line of the railway. Before 
the W. U. T. Co. had completed the construction of 
its line, the P. T. Co. filed a bill in equity in a Circuit 
Court of the United States to restrain the W. U. T. 
Co. from interfering with the monopoly vested in the 

1 Congress, by Act of 8 June, 1872, c. 335, 17 Stat. 308, Eev. Stat. Sec. 3964 
et seq., declares all railway lines in the United States to be post roads. 

2 96 U. S. 1. 



142 COMMEECE. 

plaintiff by tlie Florida statute of 1866, and the Circuit 
Court having dismissed the bill, its decree was affirmed 
in the Supreme Court, the ground of decision being 
that the power to regulate commerce is not confined to 
the instrumentalities of commerce, known or in use 
when the Constitution was adopted ; that telegraphic 
communication is commercial intercourse and, as such, 
subject to congressional regulation ; that the Act of 
Congress of 24 July, 1866, is a legitimate regulation of 
interstate commercial intercourse, in that it declares in 
substance " that the erection of telegraph lines shall, so 
far as state interference is concerned, be free to all who 
will submit to the conditions imposed by Congress,"^ 
that, as the statute confers a right to use public property 
and authorizes the use of private property only by the 
consent of its owner, there is therein no interference 
with the reserved rights of the states; and that the 
exclusive monopoly vested by the Florida Act of 1866 
in the P. T. Co. was void as an attempted regulation 
of interstate commerce. In W. U. T. Co. v. Texas,^ 
the only question was as to the right of the state of 
Texas to tax the telegraph company, upon the mes- 
sages transmitted by it, the company relying upon its 
acceptance of the act of Congress, and resisting the tax 
so far as concerned the messages transmitted to points 
outside of the state, and the m.essages sent over its lines 
by officers of the United States on public business ; and 
the court held, that the burden of the tax being im- 
posed on the messages sent, it was void, as a regulation 
of interstate commerce, so far as regarded the messages 
sent to points without the state, and as an interference 
with the means employed by the government of the 
United States in the execution of its constitutional 
powers, so far as regarded the messages of the govern- 

1 per Waite, C. J., 96 U. S. 11. ^ 105 U. S. 460. 



INDIAN TRIBES. 143 

ment. In W. U. T. Co. v. Pendleton/ the question was 
as to the validity of a statute of Indiana, which under- 
took to regulate the delivery in other states of messages 
transmitted from places in the state of Indiana, by 
requiring under certain conditions a delivery of the 
messages to the person addressed by special messenger, 
and the court held the statute void as an interstate 
regulation of commerce, so far as regarded its intended 
extra-territorial effect. It may, therefore, be regarded 
as settled, that the trasmission of messages by telegraph 
is, within the meaning of the Constitution, "commerce;"^ 
and that as interstate commerce, it is subject to congres- 
sional regulation and exempt from state control or 
interference. 

56. The Indian tribes are not foreign, but domestic 
and dependent nations; their relation to the United 
States resembles that of a ward to his guardian; and 
they are completely under the sovereignty and dominion 
of the United States. They, therefore, cannot sue in the 
courts of the United States as foreign states. The reg- 

1 122 u. S. 347. 

=> Waite, C. J., said in Telegraph Co. v. Texas, 105 U. S. 460, 464, "a tele- 
graph company occupies the same relation to commerce as a carrier of mes- 
sages, that a railroad company does as a carrier of goods. Both companies are 
instruments of commerce, and their business is comraei*ce itself. They do 
their transpor' ation in different ways, and their liabilities are in some respects 
different, but they are both indispensable to those engaged to any considerable 
extent in commercial pursuits." In W. U. T. Co. v. Pendleton, 122 U. S. 356, 
Field, J., said, "although intercourse by telegraphic messages between the 
states is thus held to be interstate commerce, it differs in material particulars 
from that portion of commerce with foreign countries and between the states 
which consists in the carriage of persons and the transportation and exchano-e 

of commodities It differs not only in the subjects which it transmits 

but in the means of transmission. Other commerce deals only with persons, 
or with visible and tangible things. But the telegraph transports nothing 
visible and tangible; it carries only ideas, wishes, orders, and intelligence. 
Other commerce requires the constant attention and supervision of the carrier 
for the safety of the persons and property carried. The message of the tele- 
graph passes at once beyond the control of the sender, and reaches the office 
to which it is sent instantaneously." 

' Cherokee Nation v. Georgia, 5 Pet. 1 ; Worcester v. Same, 6 id. 515. 



144 COMMEECE. 

ulation of the relation between the several states and 
the Indian tribes is exclusively vested in the United 
States, and state laws cannot operate within an Indian 
reservation.^ Congress, under the power to regulate 
commerce with the Indian tribes, may constitutionally 
forbid the sale of spirituous liquors to all persons be- 
lono-ino; to Indian tribes within the territorial limits of 
a state, even outside the bounds of an Indian reserva- 
tion,^ and it is competent for the United States, in the 
exercise of the treaty-making power, to stipulate in a 
treaty with an Indian tribe, that the introduction and 
sale of spirituous liquors shall be prohibited within 
certain territories ceded by the tribe to the United 
States, and such stipulation operates proprio vigore, and 
is binding though the ceded territory be within the 
limits of an organized county of one of the United 
States.^ 

^ Worcester v. Georgia, 6 Pet. 515. 

2 United States v. HoUiday ; Same v. Haas, 3 Wall. 407. 

* U. S. V. 43 gallons of whisl<y, 93 U. S. 188. As to the term " Indian 
country," see Ex parte Crow Dog, 109 U. S. 556 ; U. S. v. Le Bois, 121 id. 278. 
The subject of the exercise by the states of their powers of taxation, and of 
police regulation, as affecting commerce, is more fully treated in other chap- 
ters of this book. 



CHAPTER V. 

THE IMPAIEMENT OF THE OBLIGATION OF CONTEACTS. 

57. The prohibition affects only laws passed by states. 

58. The term " law " defined. 

59. Judgments of state courts not conclusive either as to the non-existence, 

or non- impairment, of contracts. 

60. The obligation of a contract defined. 

61. Legislation as to remedies. 

62. The term " contracts " defined. 

63. State insolvent laws. 

64. Judgments as contracts. 

65. Municipal taxation. 

66. History of the prohibition. 

67. State grants. 

68. Express contracts of exemption from taxation. 

69. Express grants of peculiar privileges. 

70. Contracts between a state and its political subdivisions. 

71. Implied contracts in charters of incorporation. 

72. Implied corporate exemption from taxation. 

73. Implied grants of peculiar privileges. 

74. Implied exemption from the operation of the police power. 

75. Implied contracts as to matters of public concern. 

76. The withdrawal by a state of its consent to be sued. 

77. The force and effect of the prohibition as construed by the Supreme 

Court. 

57. Section 10 of article I of the Constitution declares 
that " no state shall . . . pass any , . . law impair- 
ing the obligation of contracts." This prohibition 
does not in terms affect the exercise of legislative power 
by the government of the United States, and not only 
is there not in the Constitution any similar prohibition 
with regard to the United States, but by the grant of 
power to Congress, " to establish . . . uniform laws 
on the subject of bankruptcies throughout the United 
10 145 



146 IMPAIEMENT OF CONTEACTS. 

States," ^ authority is expressly conferred to impair the 
obligation of contracts between debtors and creditors ; ^ 
and under the doctrine of the implied powers, as con- 
strued by the court, Congress may impair the obligation 
of contracts by authorizing the issue of notes which shall 
be a legal tender in satisfaction of antecedently con- 
tracted debts.^ The constitutional prohibition is like- 
wise inoperative with regard to the acts of any politi- 
cal organization, which at the time of the adoption of 
the act in question, is not one of the United States ; 
thus, the Constitution having, under the resolution of 
the Convention of 1787 and the Act of Congress of 
February, 1788, gone into eiffect on the first Wednes- 
day of March, 1789, a statute enacted by the state of 
Virginia in 1788 was not affected by the constitutional 
prohibition.^ So, also, a statute enacted by the republic 
of Texas before its admission into the United States 
as the state of Texas could not be held to be void for 
repugnancy to this clause of the Constitution.^ 

58. The prohibition of the passage by a state of any 
" law impairing the obligation of contracts," would, if 
strictly construed, include under the word " law " only 
statutes enacted by state legislatures, but it has been 
determined that the word "law" comprehends, in 
addition to acts of legislation, state constitutions and 
constitutional amendments;^ judicial decisions of state 

^ Article I, Section 9. 

^ Sturges V. Crowninshield, 4 Wheat. 122, 194, 

^ Supra, Chapter II. 

* Owings V. Speed, 5 Wheat. 420. 

^ League v. De Young, 11 How. 185, 203. See also Scott v. Jones, 5 How. 
343, 378. 

6 O. & M. E. E, V. McClure, 10 Wall. 511 ; White v. Hart, 13 id. 646 ; Os- 
born V. Nicholson, ibid. 654 ; Gunn v. Barry, 15 id. 610 ; County of Moultrie v. 
Eockingham T. C. S, Bank, 92 U. S. 631 ; Edward v. Kerzey, 96 id. 595 ; 
Keith V. Clark, 97 id. 454 ; N. O. Gas Co. v. Louisiana Light Co., 115 id. 650 ; 
Fisk V. Jefferson Police Jury, 116 id. 631. 



LAW DEFINED. 147 

courts of last resort, rendered subsequently to the 
making of the contract in question, and antecedently 
to the suit in which the court determines the invalidity 
of the contract, and altering by construction the Consti- 
tution and statutes of the state in force when the contract 
was made;^ and, in general, any act or order, from 
whatever source emanating, to which a state, by its 
enforcement thereof, gives the force of a law ; as, for 
instance, a statute enacted by the congress of the Con- 
federacy and enforced during the war of the rebellion 
by a court of a state within the insurgent lines.^ Ob- 
viously the law, which is alleged to have impaired the 
obligation of the contract must have been enacted sub- 
sequently to the making of the contract, for a law 
enacted antecedently to the making of the contract can 
be said to have entered into, and become part of, the 
contract.^ The judgment of the state court in the 
cause, determining the particular contract to be invalid, 
cannot be said to be a law impairing the obligation of the 
contract, for otherwise the federal court of last resort 
would be called upon to "re-examine the judgments of 
the state courts in every case involving the enforcement 
of contracts." As Harlan, J., said in Lehigh Water 

^ Gelpcke v. Dubuque, 1 Wall. 175 ; Olcott v. The Supervisors, ibid. 678 ; 
Chicago V. Sheldon, 9 id. 50 ; The City v. Lamson, ibid. 477 ; Douglass v. The 
County of Pike, 101 U. S. 677; County of Rolls v. Douglass, 105 id. 728; 
Havemeyer v. Iowa County, 3 Wall. 294. This doctrine was first suggested by 
Taney, C. J., who said in Ohio L. I. & T. Co. v. Debolt, 16 How. 432, " the 
sound and true rule is, that if the contract when made was valid by the laws 
of the state, as then expounded by all the departnients of its government and 
administered in its courts of justice, its validity and obligation cannot be im- 
paired by any subsequent act of the legislature of the state, or decision of its 
courts, altering the construction . of the law;" and in Gelpcke t>. Dubuque, 1 
Wall. 206, Swayne, J., quoted the dictum of Taney, C. J., and declared it to be 
" the law of this court." 

2 Williams v. Brufiy, 96 U. S. 176 ; Stevens v. Griffith, 111 U. S. 48 ; Ford 
V. Surget, 97 U. S. 594. 

3 L. W. Co. V. Easton, 121 U. S. 388, 391. 



148 IMPAIEMENT OF CONTEACTS. 

Co. V. Easton/ " tlie state court may erroneously deter- 
mine questions arising under a contract, which consti- 
tutes the basis of the suit before it ; it may hold a con- 
tract to be void, which, in our opinion, is valid ; it may 
adjudge a contract to be valid, which, in our opinion, 
is void ; or its interpretation of the contract may, in 
our opinion, be radically wrong; but, in neither of 
such cases, would the judgment be reviewable by this 
court under the clause of the Constitution protecting 
the obligation of contracts against impairment by state 
legislation, and under the existing statutes defining 
and regulating its jurisdiction, unless that judgment in 
terms, or by its necessary operation, gives effect to some 
provision of the state Constitution, or some legislative 
enactment of the state, which is claimed by the unsuc- 
cessful party to impair the obligation of the particular 
contract in question."^ It must, therefore, appear in any 
cause in which it is sought to reverse in the Supreme 
Court of the United States, a decree or judgment of a 
state court for contravention of the constitutional pro- 
hibition of the impairment of contracts, that in the 
particular case the state court enforced to the prejudice 
of the plaintiff in error some act of state, either in the 
form of a state Constitution, or an act of the state legis- 
lature, or a judgment of a court in another case, or an 
act of an extrinsic authority to which the state by its 
adoption thereof gave the force of law, and that the act 
of state, whatever its form, was as affecting the contract 
put into operation subsequently to the making of that 
contract. 

59. In questions under this clause of the Constitution 

1 121 U. S. 388, 392. 

2 See also : E. E. v. Eock, 4 Wall. 177, 181 ; E. E. v. McClure, 10 Wall. 
511, 515; Knox v. Exchange Bank, 12 id 379, 383; Delmas v. Ins. Co., 14 id. 
661, 66.'> ; University v. People, 99 U. S. 309, 319 ; C. L. Ins. Co. v. Needles, 113 
id. 574, 582. 



ACTION UPON REMEDIES. 149 

the courts of the United States do not accept as con- 
clusive upon them the judgment of the state court 
either as to the non-existence of contracts or as to 
their non-impairment/ for, if the decision of the state 
court were to be accepted without inquiry or examina- 
tion, the constitutional prohibition would be nugatory. 

60. The obligation of a contract is the duty of per- 
formance which the law imposes on one, or other, or 
both of the parties to the contract.^ As Marshall, C. 
J., said in the case last cited, "any law which releases 
a part of this obligation must in the literal sense of the 
word impair it." Of course, the application of the con- 
stitutional prohibition is not dependent on the extent of 
the impairment.^ 

61. A state may, without impairment of the obliga- 
tion of a contract, regulate, or even limit, the remedies 
for the enforcement of that contract, provided that it 
does not take away all remedies therefor, and that it 
leaves in force a substantial remedy. Thus a state may 
in the case of a corporation whose charter requires that 
service of process on the corporation shall be made only 
at its principal office provide by subsequent legislation 
that such process may be served on any officer, clerk, or 
agent of the corporation.* A state may abolish im- 
prisonment for debt as a remedy for breach of con- 
tract;^ it may validate technically defective mortgages,^ 
or conveyances by femes covert ; ^ it may by statute 

1 State Bank v. Knopp, 16 How. 369 ; Ohio L. I. & T. Co. v. De Bolt, ibid. 
416 ; J. B. Bank v. Skelly, 1 Black. 436 ; Bridge Proprietors v. Hoboken Co., 
1 Wall. 116 ; Delmas v. Insurance Co., 14 id. 661 ; Wright v. Nagle, 101 U. 
S. 791 ; Williams v. Louisiana, 103 id. 637 ; L. & N. R. E. v. Palmes, 109 id. 
244. 

* Sturges V. Crownmshield, 4 Wheat. 197. 

^ Green v. Biddle, 8 Wheat. 1. * Eailroad v. Hecht, 95 U. S. 168. 

^ Mason v. Haile, 12 Wheat. 327 ; Penniman's Case, 103 id. 714. 

« Gross V. U. S. Mortgage Co., 108 U. S. 477. 

" Eandall v. Kreiger, 23 Wall. 137. 



150 IMPAIRMENT OF CONTRACTS. 

grant new trials and create new tribunals to set aside 
grants or reverse judgments alleged to be fraudulent;-'^ 
it may provide speedy and equitable methods for de- 
termining the title to lands under patents granted by 
the state ;^ it may authorize at the request of all parties 
in interest the discharge of testamentary trustees of 
real estate;^ it may change the rate of interest to be 
paid to the purchaser in the case of the redemption of 
mortgaged premises sold under foreclosure;* it may 
repeal usury laws which unrepealed would have avoided 
the contract;^ it may prescribe a scheme for the reor- 
ganization of an embarrassed corporation and provide 
that creditors who have notice of and do not dissent 
from the scheme shall be bound thereby;^ it may re- 
duce the limitation of time for bringing suit provided 
that a reasonable limit elapses after the enactment be- 
fore the limitation bars a suit upon existing contracts ; "^ 
it may require registration as a prerequisite to the legal 
enforcement of existing mortgages, provided that a 
reasonable period be allowed before the law goes into 
effect f it may require holders of tax sale certificates to 
give notice to the occupant of the land, if any there be,, 
before taking a tax deed ; ^ it may require registration 
with municipal officials of judgments against a munici- 
pality ; ^° it may free shareholders of a corporation from 
individual liability for debts of the corporation to an 

^ League v. De Young, 11 How. 202. 

^ Jackson v. Lamphiere, 3 Pet. 208. 

^ Williamson v. Suydam, 6 Wall. 723. 

* C. M. L. Ins Co. V. Cushman, 108 U. S. 51. 

5 Ewell V. Daggs, 108 U. S. 143. 

6 Gilfillan v. Union Canal Co., 109 U. S. 401. 

^ Terry v. Anderson, 95 U. S. 628 ; Barrett v. Holmes, 102 id. 651 ;, 
Koshkonong v. Burton, 104 id. 660. 

8 Vance v. Vance, 108 U. S. 514. 

9 Curtis V. Whitney, 13 Wall. 68. 

10 Louisiana v. New Orleans, 102 U. S. 203. 



ACTION UPON KEMEDIES. 151 

amount greater than tlieir shares, for such legislation 
does not impair the direct liability of the corporation ; ^ 
it may, after a state bank has obtained judgment against 
a party, authorize that party to set off against the judg- 
ment circulating notes of the bank procured by him 
after the entry of the judgment f and, a disseised tenant 
for years being entitled to sue on the landlord's cove- 
nant for quiet possession and also on a statutory remedy 
for forcible entry and detainer, the state may take away 
the statutory remedy, provided that the action on the 
covenant be left unimpaired.^ A state, having issued 
bonds, and having by a subsequent statute provided for 
the funding of those bonds on certain terms at a reduced 
rate of interest, may, by a later statute, prohibit the 
funding of a specified class of those bonds until by 
judicial decree their validity shall have been deter- 
mined, for the original remedy of the bondholder is not 
thereby impaired.^ 

So also, a state, which has contracted to receive its 
taxes in the notes of a certain bank, may, by statute, 
provide that the only remedy for taxpayers, whose 
tender of such notes may be refused, shall be to pay in 
legal money and within a time limited to bring suit 
against the tax collector, judgment against whom shall 
be a preferred claim against the state.^ So also where 
the laws of a state permit coupons of state bonds to be 
received in payment of state taxes, provided that in case 
of the refusal of such coupons when tendered the holder 
thereof might enforce his rights under the contract by 
suing out an alternative mandamus against the officer 
refusing the coupons, and if judgment should be rendered 

1 Ochiltree v. I. R. C. Co., 21 Wall. 249. 

2 Blount V. Windley, 95 U. S. 173. » Drehman v. Stifle, 8 Wall. 595. 
* Guarantee Company v. Board of Liquidation, 105 U. S. 622. 

5 Tennessee v. Sneed, 96 U. S. 69. 



152 IMPAIEMENT OF CONTEACTS. 

in favour of the holder of the coupons that he could then 
have forthwith a peremptory writ of mandamus for the 
recovery of damages and costs, the obligation of the con- 
tract was not impaired by a subsequent statute which 
required in case of the refusal of the tender of the 
coupons a payment of the state taxes in lawful money 
and a lodging of the coupons in a state court of compe- 
tent jurisdiction, and the subsequent framing of an issue 
to determine whether or not the coupons were genuine 
and legally receivable for taxes, with a right of appeal 
to the state court of last resort/ On the other hand, a 
state, in acting upon the remedy, cannot take away all, 
or a substantial part, of the power for the enforcement 
of a contract. It, therefore, cannot prohibit its courts 
to entertain jurisdiction of a suit to enforce or obtain 
damages for the breach of a class of contracts, legally 
valid when made ; ^ nor can a state forbid its courts, 
after the abolition of slavery, to take jurisdiction of 
actions uj)on contracts made before that abolition and 
the consideration for which was the price of slaves ;^ 
nor could a state, after the restoration of peace, declare 
void a contract made between its citizens during the 
war of the rebellion stipulating for payment in con- 
federate notes ; ^ nor can a state, after the making of a 
contract, change to the prejudice of either party the 
measure of damages for its breach ;^ nor can a state, by 
subsequent legislation, impose as a condition precedent 
to the legal enforcement of a contractual right, that he 
who seeks to enforce that right shall prove an extrinsic 
and independent fact that has no necessary connection 
with the right to be enforced ; as for instance that he 

^ Antoni v. Greenliow, 107 U. S. 769 ; Moore v. Same, 114 id. 338. 

=> Van Hoffman v. Quincy, 4 Wall. 552. 

3 Wright V. Hart, 13 Wall. 646. 

* Delmas v. Insurance Co., 14 Wall. 661. 

5 Effinger v. Kenney, 115 U. S. 566; W. & W. E. E. v. King,'95 id. 3. 



CONTRACTS DEFINED. 153 

never bore arms in support of, or never aided, the re- 
bellion against the United States ; ^ or that he has paid 
certain taxes ; nor can it permit the defendant to set oif 
damages not caused by the plaintiff ; as for instance the 
defendant's loss of property resulting from the war of 
the rebellion ;^ nor can a state, after a judgment has been 
enrolled, materially increase the debtor's exemption ; ^ 
nor can a state after the making of a mortgage enlarge 
the period of time allowed for the redemption after 
foreclosure ; "* nor forbid a sale in foreclosure at which 
less than two-thirds of the value of the mortgaged prem- 
ises as fixed by appraisement shall be realized ; ^ nor 
take away the right to compound interest, if given by 
the law existing at the time of the making of the con- 
tract; ^ nor repeal a statute in force at the time of mak- 
ing the contract which renders the stock of a share- 
holder liable for the debts of the corporation/ 

62. The term " contracts," as used in the constitu- 
tional prohibition, includes both executory and executed 
contracts,^ comprehending, within the former class, 

1 Pierce v. Carskadon, 16 Wall. 234. 

2 Walker v. Whitehead, 16 Wall. 314. 

3 Gunn V. Barry, 15 Wall. 610. * Howard v. Bugbee, 24 How. 461. 
^ Bronson v. Kinzie, 1 How. 311 ; McCrackea v. Hayward, 2 id. 608 ; 

Gartly v. Ewing, 3 id. 707. 

" Koshkonong v. Burton, 104 U. S. 668. 

' Hawthorn v. Calef, 2 Wall. 210. 

^ " Contract " is, as Field, J., said in Louisiana v. Mayor of New Orleans, 
109 U. S. 285, 288, " used in the Constitution in its ordinary sense as signify- 
ing the agreement of two or more minds for consideration proceeding from 
one to the other to do or not to do certain acts." In Sturges v. Crowninshield, 
4 Wheat. 122, 197, Marshall, C. J., said, " a contract is an agreement in which 
a party undertakes to do or not to do a particular thing." Marshall, C. J., 
said in Fletchers. Peck, 6 Cr. 87, 136, "a contract is a compact between two 
or more parties, and is either executory or executed. An executory contract 
is one in which a party binds himself to do, or not to do, a particular thing. 
. . . . A contract executed is one in which tlie object of contract is per- 
formed, and this, says Blackstone, differs in nothing from a grant 

Since then, in fact, a grant is a contract executed, tb.e obligation of which 
still' continues, and since the Constitution uses the general term 'contracts,' 



154 IMPAIEMEJSTT OF CONTEACTS. 

promissory notes and bills of exchange/ corporate 
bonds,^ municipal bonds,^ and municipal contracts for 
the payment of the salaries of their employes * and,, 
generally, all legally enforcible contracts to do, or not 
to do, any particular act ; and, within the latter class, 
grants and judgments founded upon contracts,^ but not 
judgments founded upon torts.*^ 

There can be no impairment of the obligation of a 
contract which has not been legally made. Thus a vote 
of the majority of the qualified voters of a county at an 
election held under a statute incorporating a railway 
and authorizing an issue of the bonds of the county in 
payment for the stock of the railway, if the qualified 
voters so decide it, does not constitute a contract whose 
obligation can be impaired by an amendment of the state 
Constitution,"^ or by a repeal of the statute,® before the 
subscription be made or the bonds issued. On the same 

without distinguishing between those whicli are executory and those which 
are executed, it must be construed to comprehend the latter as well as the 
former." In Dartmouth College v. "Woodward, 4 Wheat. 629, Marshall, C. J., 
said, " the provision of the Constitution never has been understood to embrace 
other contracts than those which respect property or some object of value 
and confer rights which may be asserted in a court of justice." Daniel, J., 
said in Butler v. Pennsylvania, 10 How. 402, 416, " the contracts designed to 
be protected .... are contracts by which perfect, certain, definite, 
fixed, private rights of property are vested." 

1 Sturges V. Crowninshield, 4 Wheat. 122; McMillan v. McNeil, ibid.209; F. 
& M. Bank v. Smith, ibid. 131 ; Ogden v. Saunders, 12 id. 624 ; Boyle v. Zach- 
arie, 6 Pet. 63-5 ; Suydam v. Broadnax, 14 id. 67 ; Cook v. Moffatt, 5 How. 295 ; 
Baldwin v. Hale, 1 Wall. 223. 

2 Case of State Tax on Foreign-held Bonds, 15 AVall. 300. 

3 County of Moultrie v. E. T. C S. Bank, 92 U. S. 631 ; Mobile v. Wattson, 
116 U. S. 289; sed cf. Merriwether tJ. Garrett, 102 id. 472. 

* Fisket). J. Police Jury, 116 U. S. 131. 

s Blount V. Windley, 95 U. S. 173; Memphis w. U. S., 97 U. S. 293; Mobile 
V. Wattson, 116 id. 298; WolflT v. New Orleans, 103 id. 358; Nelson v. St. 
Martin's Parish, 111 id. 716; Eolls County Court v. U. S., 105 id. 733 ; Lou- 
isiana V. Pillsbury, ibid. 278. 

6 Louisiana v. New Orleans, 109 IJ. S. 285." 

^ Aspinwall v. Daviess County, 22 How. 364. 

8 Wadsworthi). Supervisors, 102 U. S. 534. 



INSOLVENT LAWS. 155 

principle, a state statute, wliicli is void by reason of 
repugnancy to the Constitution of the United States, 
cannot constitute a contract of exemption from state 
taxation; as for instance, a statute imposing taxation on 
national banks to an extent not permitted by the 
National Banking Act, and, therefore, a subsequent state 
statute imposing on national banks a taxation which 
though a heavier burden than that im230sed by the earlier 
statute is yet within the limits permitted by the 
National Banking Act, does not impair the obligation 
of any contract.^ On the same principle, a statutory 
exemption from state taxation, if granted in violation 
of the Constitution of the state, does not bind the state 
as a contract.^ 

63. There was, for some time, a controversy as to the 
effectof the constitutional prohibition upon state insolvent 
laws; in Sturges v. Crowninshield,^ the action being 
brought in a federal court within the state of Massachu- 
setts, and the plaintiff" being a citizen of NewYork, and the 
defendant a citizen of Massachusetts, it was held that a 
discharge under an insolvent law of Massachusetts^ 
enacted subsequently to the making within that state 
of a contract to be performed within the state, was void 
as an impairment of the obligation of that contract. In 
McMillan v. McNeil,* the action being brought in a 
court of the state of Louisiana, the plaintiff" and defend- 
ant both being citizens of South Carolina, and the con- 
tract having been made and stipulated to be performed 
in that state, it was held that a discharge under an 
antecedently enacted law of Louisiana impaired the 
obligation of the contract, and was no bar to its enforce- 

^ People V. Commissioners of Taxes, 94 U. S. 415. 

2 E. E. V. Gaines, 97 U. S. 697 ; Trask v. Maguire, 18 Wall. 391 ; Morgan w. 
Louisiana, 93 U. S. 217 ; Shields v. Ohio, 95 id. 319. 
^ 4 Wheat. 122. * 4 Wheat. 209. 



156 IMPAIEMEIN^T OF CONTEACTS. 

ment. In F. & M. Bank v. Smith,^ the action being 
brought in a court of the state of Pennsylvania, and 
both plaintiff and defendant being residents of that 
state, and the contract having been made, and to be 
performed, in that state, it was held that a discharge 
under a subsequently enacted insolvent law of that state 
was no bar to the action. In Ogden v. Saunders,^ the 
plaintiff being a citizen of Kentucky and the defendant 
a, citizen of New York, the contract having been made 
in li^ew York to be performed in that state, and the 
action having been brought in a federal court in the 
state of Louisiana, it was held that a discharge under 
an antecedently enacted insolvent law of the state of 
New York was no bar to the action ; and in Shaw v. 
Robbins,^ the same ruling was made, the action being 
brought in a court of the state of Ohio, the j^laintiff 
being a citizen of Massachusetts, the defendant a citizen 
of New York, and the discharge set up being one that 
had been obtained under an antecedently enacted insolv- 
ent law of the last-mentioned state. In Boyle v. 
Zacharie,* Story, J., said, " the effect of the discharge 
under the insolvent act is of course at rest, so far as it 
is covered by the antecedent decisions made by this 
court. The ultimate opinion delivered by Mr, Justice 
Johnson in the case of Ogclen v. Saunders,^ was con- 
curred in and adopted by the three judges, who were 
in the minority upon the general question of tbe consti- 
tutionality of state insolvent laws, so largely discussed 
in that case," and "^ Marshall, C J., expressed the same 
view as to the effect of the judgment in Ogden v. Saun- 
ders. In Sudyam v. Broadnax,' the action having been 
brought in a court of the state of Alabama, the plaintiff 

1 6 Wheat. 131. * 6 Pet. 643. ^ ^t p. 635. 

2 12 Wheat. 213, » y^ Wheat. 213, 358. ^ 14 Pet. 67. 

3 12 Wheat. 369. 



INSOLVENT LAWS. 157 

being a citizen of New York, it was held that a judicial 
declaration of the insolvency of a decedent's estate under 
the terms of an antecedently enacted statute of Alabama 
was powerless to discharge a contract made by the dece- 
dent in his lifetime in New York and stipulated to be 
performed in that state. In Cook v. MofPat/ the action 
being brought in a federal court in the state of Mary- 
land, the plaintiff being a citizen of New York and the 
defendant a citizen of Maryland, and the contract having 
been made in New York to be performed in that state, it 
was held that a discharge under an antecedently enacted 
statute of Maryland was no bar to the action. In Bald- 
win V. Hale,^ the action having been brought in a federal 
court in the state of Massachusetts, the plaintiff being a 
citizen of Vermont and the defendant a citizen of Massa- 
chusetts, and the contract having been made in Massachu- 
setts, to be j^erformed in that state, it was held that a 
discharge under an antecedently enacted statute of Mas- 
sachusetts did not bar the action. The result of the 
cases is, that a discharge under the insolvent laws of a 
state is not a bar to an action on a contract for the pay- 
ment of money, first : when the law under which the 
discharge has been granted has been enacted subse- 
quently to the making of the contract;^ second: when, 
although the discharge has been granted under a law 
enacted antecedently to the making of the contract, the 
contract was made in another state to be performed in 
that other state ;^ third: when, although the discharge 
has been granted under a law enacted antecedently to 
the making of the contract, and although the contract 
was made and to be performed in the state in which 
the discharge has been granted, the action upon 

1 5 How. 295. 2 I y^^ii 223. 

3 Sturges V. Crowninshield, 4 Wheat. 122 ; F. & M. Bank v. Smith, 6 id. 131. 

* McMillan v. McNeil, 4 Wheat. 209 ; Cookr. Moffat, 5 How. 295. 



158 IMPAIRMENT OF CONTRACTS. 

the contract is brought in another state, by a party 
who is not a citizen of the state granting the dis- 
charge, and who has not made himself a party to 
the proceedings in insolvency ;^ and fourth, when, 
although the discharge has been granted under a law 
enacted antecedently to the making of the contract, and 
although the contract was made and to be performed in 
the state in which the discharge has been granted, the 
action upon the contract is brought in the state grant- 
ing the discharge by one who is not a citizen of that 
state, and who has not made himself a party to the pro- 
ceedings in insolvency.^ The questions, as yet not con- 
cluded by the authority of the court, are as to the 
effect of the discharge as regards creditors, who, though 
not citizens of the state granting the discharge, volun- 
tarily become parties to the insolvency proceedings, or, 
who, being citizens of the state granting the discharge, 
and being duly notified of the insolvency proceedings, 
neglect or refuse to become parties thereto. 

64. Contracts for the payment of money being 
within the protection of the constitutional prohibition 
of the impairment of their obligation, judgments upon 
such contracts are equally entitled to protection.^ There- 
fore, a judgment against a municipal corporation 
founded upon a breach of contract is not affected by a 
subsequent legislative abolition of the municipality's 
power to levy taxes for the payment of its debts."^ But 
judgments founded upon torts are not contracts whose 
obligation will be protected against subsequent legisla- 
tion ; as, for instance, against a statutory diminution of 

^ Ogden V. Saunders, 12 Wheat. 213 ; Shaw v. Robbins, ibid. 369, note. 

=^ Baldwin v. Hale, 1 V7all. 223. 

3 Blount V. Windsley, 95 U. S. 173. 

* Memphis v. U. S., 97 U.S. 293 ; Mobile v. Wattson, 116 id. 298 ; Wolff 
V. New Orleans, 103 id. 358 ; Nelson v. St. Martin's Parish, 111 id. 716 ; Rolls 
County Court v. United States, 105 id, 733 ; Louisiana v, Pillsbury, ibid. 278. 



MUNICIPAL CONTKACTS. 159 

the taxing power of the municipality against which the 
judgment in tort has been obtained.^ 

Qb. A state cannot take away from a municipality ex- 
isting powers of taxation so as to deprive of his com- 
pensation an officer who has served his term.^ County 
bonds issued by public officers under authority of law 
either upon the subscription, or upon the agreement to 
subscribe to the stock of a railway constitute a contract 
between the county and the bondholders, whose obligation 
cannot be impaired by a subsequent legislative repeal 
of the statute authorizing the subscription, or by a sub- 
sequent amendment to the state Constitution prohibiting 
such a subscription.^ But where public officers are by 
statute authorized to issue bonds in aid of railway con- 
struction only upon the fulfillment of a condition pre- 
cedent which is not fulfilled before the adoption of an 
amended state Constitution prohibiting the issue of such 
bonds there is no contract whose obligation is impaired 
by the adoption of the state Constitution.^ On the same 
principle* a statutory authorization of borrowing of 
money by a municipality is not a contract between the 
state and the municipal creditors whose obligation can 
be impaired by the subsequent exercise by the state of 
the power of modifying the rate of taxation or of ex- 
empting certain property from taxation,^ but a state 
cannot dissolve an existing municipal corporation 
having a bonded debt, for whose payment powers of 
taxation have been granted and specifically pledged, for 
that dissolution interferes with the exercise of such 
power of taxation.^ Nor can a state withdraw or 

^ Louisiana v. New Orleans, 109 U. S. 285. 
=* Fiske V. J. Police Jury, 116 U. S. 131. 
3 County of Moultrie v. K. T. C. S. Bank, 92 U. S. 361. 
* D. & J. E. E. V. Falconer, 103 U. S. 821. 
5 Gilman v. Sheboygan, 2 Bl. 510. 

« Mobile V. Wattson, 116 U. S. 289 ; sed cf. Merriweather v. Grarrett, 102 
id. 472. 



160 IMPAIEMENT OF CONTEACTS. 

restrict the taxing power of a municipality so as to 
impair the obligation of contracts which have been 
made on the pledge, express or implied, that that tax- 
ing power shall be exercised for their fulfillment.^ A 
statutory prohibition of the issuing by the courts of the 
state of a mandamus to compel the levying of a tax for 
the payment of the interest upon, or the principal of^ 
municipal bonds, w^hose issue had been legally author- 
ized, impairs the contract between the municipality and 
the bondholder.^ In general, the statutory authorization 
of the contracting by a municipality of an extraordi- 
nary debt by the issue of negotiable securities therefor 
conclusively implies a power in the municipality to 
levy taxes sufficient to pay the accruing interest upon, 
and the matured principal of, the debt unless the statute 
conferring the authority, or the Constitution of the 
state, or some general law in force at the time, clearly 
manifests a contrary legislative intent.^ 

Q<d. It has never been doubted that contracts between 
individuals were protected by the constitutional pro- 
vision, but it was formerly a matter of grave doubt 
whether or not contracts, to which a state was a party, 
were likewise entitled to protection. The history of 
the Constitution shows clearly, that the mischiefs, which 
the framers of the Constitution intended to remedy by 
this prohibition, were, primarily, those caused by state 
legislation enabling debtors to discharge their debts 
otherwise than as stipulated in their contracts, and that 
the prohibition was not intended by its originators to 
interfere with the exercise of state sovereignty in cases 
of other than jorivate contracts. This restriction on 

1 Wolff V. New Orleans, 103 U. S. 358; Nelson v. St. Martin's Parish, 111 
id. 716 ; Eolls County Court v. United States, 105 id. 733 ; Memphis v. United 
States, 97 id. 293 ; Siebert v. Lewis, 122 id. 284. 

2 Louisiana v. Pillsbury, 105 U. S. 278. 

3 Eolls County Court v. United States, 105 U. S. 733. 



HISTORY OF THE CLAUSE. 161 

the power of the states is not to be found in either Mr. 
Pinckney's, Mr.. Hamilton's, or Mr. Patterson's projets 
as presented to the convention, nor is it implied in Mr. 
Madison's resolutions, nor does it appear in the draft 
reported by the Committee of Five on 6 August, 1787; 
but when article XIII of the report of that committee 
was under consideration on 28 August, Mr. King 
"moved to add in the words used in the ordinance of 
Congress establishing new states, a prohibition on the 
states to interfere in private contracts," but, on motion 
of Mr. Rutledge, as a substitute for Mr. King's propo- 
sition, there was adopted a prohibition of state bills of 
attainder and ex post facto laws.^ The journal of the 
convention mentions Mr. Rutledge's motion, but omits 
all reference to Mr. King's proposition. Mr. Madison 
reports Mr. King's resolution, with the mention of dec- 
larations of opinion in favour of it by Messrs. Sherman, 
Wilson, and Madison, and objections to it by Messrs. 
Gouverneur Morris, and Mason, on the ground that 
state laws, limiting the times within which actions 
might be brought, necessarily interfered with contracts, 
and ought not to be prohibited, and that there might 
be other cases in which such interferences would be 
proper. There does not seem to be any record of any 
other discussion of this subject in the convention. 
The Committee of Revision reported on 12 September, 
1787, to the convention their revised draft of the 
Constitution, in which Art. I, Sec. 10, declares "no 
state shall . . . pass any . . . laws altering or im- 
pairing the obligation of contracts." In convention 
on Friday, 14 September, 1787, the clause was 
finally amended and put into the form in which it ap- 
pears in the Constitution, there being, so far as is known, 
no debate on the subject, save by Mr. Gerry, who 

^Madison Papers, 5 Elliot's Debates 485. 



162 IMPAIEMENT OF CONTEACTS. 

*' entered into observations inculcating the importance 
of the public faith and the propriety of the restraint 
put on the states from impairing the obligation of con- 
tracts," and unavailingly endeavoured to obtain the in- 
sertion in the Constitution of a similar restraint upon con- 
gressional action.^ Mr. Bancroft states,^ with reference 
to the Committee of Revision's report, that " Gouverneur 
Morris retained the clause forbidding ex post facto laws 
— and resolute not ' to countenance the issue of paper 
money and the consequent violation of contracts,' " ^ he 
of himself added the words, "no state shall pass laws 
altering or impairing the obligation of contracts."^ 
Mr. Bancroft also quotes from the official report to the 
Governor of Connecticut made by Roger Sherman and 
Oliver Ellsworth, the deputies from that state to the 
Federal Convention, wherein they say, " the restraint 
on the legislatures of the several states respecting emit- 
ting bills of credit, making anything but money a 
tender in payment of debts, or impairing the obligation 
of contracts by ex post facto laws, was thought necessary 
as a security to commerce, in which the interest of 
foreigners, as well as of the citizens of different 
states may be affected." The clause does not appear 
to have been made a subject of discussion in any of the 
state conventions called to ratify the Constitution. 
Mr. Hamilton, when Secretary of the Treasury, said 
in his memorandum of 28 May, 1790, to President 
Washington on the subject of the resolutions of Con- 
gress with regard to the arrears of pay due to certain 
soldiers of the Revolution,^ "the Constitution of the 
United States interdicts the states individually from 

^ Madison Papers, 5 Elliot's Debates 546. 

2 2 Hist, of the Constitution 214. » G. Morris by Sparks, III, 323. 

* Gilpin 1552, 1581. 

5 Works of Hamilton, Lodge's Edition, Vol. II, p. 147. 



HISTOEY OF THE CLAUSE. 163 

passing any law impairing the obligation of contracts. 
This, to the more enlightened part of the community, 
was not one of the least recommendations of that Con- 
stitution. The too frequent intermeddlings of the 
state legislatures, in relation to private contracts were 
extensively felt, and seriously lamented ; and a Consti- 
tution which promised a prevention, was, by those who 
felt and thought in that manner, eagerly embraced." — 
Mr. Madison said in the Federalist,^ "Bills of at- 
tainder, ex post facto laws, and laws impairing the obli- 
gation of contracts, are contrary to the first principles of 
the social compact, and to every principle of sound legis- 
lation. The two former are expressly prohibited by the 
declarations prefixed to some of the state Constitutions, 
and all of them are prohibited by the spirit and scope 
of these fundamental charters. Our own experience 
has taught us, nevertheless, that additional fences against 
these dangers ought not be omitted. Very properly, 
therefore, have the convention added this constitutional 
bulwark in favour of personal security and private 
rights ; and I am much deceived, if they have not, in so 
doing, as faithfully consulted the genuine sentiments 
as the undoubted interests of their constituents. The 
sober people of America are weary of the fluctuating 
policy which has directed the public councils. They 
have seen with regret and with indignation, that sudden 
changes, and legislative interferences, in cases affect- 
ing personal rights, become jobs in the hands of enter- 
prising and influential speculators, and snares to the 
more industrious and less informed part of the com- 
munity. They have seen, too, that one legislative inter- 
ference is but the first link of a long chain of repeti- 
tions; every subsequent interference being naturally 
produced by the effects of the preceding. They very 

1 No. XLIV, Lodge's Edition. 



164 IMPAIRMENT OF CONTEACTS. 

rightly infer, therefore, that some thorough reform is 
wanting, which will banish speculations on public 
measures, inspire "a general prudence and industry, 
and give a regular course to the business of society. " In 
Sturges V. Crowninshield,^ Marshall, C J., said "the 
fair, and, we think, the necessary construction of the 
sentence requires that we should give these words their 
full and obvious meaning. A general dissatisfaction 
with that lax system of legislation which followed the 
war of our revolution undoubtedly directed the mind of 
the convention to this subject. It is probable that laws, 
such as those which have been stated in argument, pro- 
duced the loudest complaints, were most immediately 
felt. The attention of the convention, therefore, was 
particularly directed to paper money, and to acts which 
enabled the debtor to discharge his debt otherwise than 
as stipulated in the contract. Had nothing more been 
intended, nothing would have been expressed. But, in 
the opinion of the convention, much more remained to 
be done. The same mischief might be effected by other 
means. To restore public confidence completely, it was 
necessary not only to prohibit the use of particular 
means by which it might be effected, but to prohibit the 
use of any means by which the same mischief might be 
produced. The convention appears to have intended to 
establish a great principle, that contracts should be 
inviolable. The Constitution, therefore, declares that no 
state shall pass ' any law impairing the obligation of 
contracts.' " 

67. In 1810 the judgment in Fletcher v. Peck,^ estab- 
lished the doctrine that contracts, to which a state is a 
party, are within the protection of the constitutional 
prohibition. The facts in that case were these : in 
1795, the state of Georgia enacted a statute authorizing 

1 4 Wheat. 205. ^ 6 Cr. 87. 



CONTEACTS OF A STATE. 165 

the issue of a patent to " the Georgia Co." for a tract 
of laad in that state, and on 13 January, 1795, the 
patent was issued. By sundry mesne conveyances 
before 1796 title in fee to a part of the tract vested in 
Peck, who had purchased for value and without notice 
of any matter which could invalidate the title of the 
state's grantees. In 1796 the state of Georgia enacted 
a statute repealing the Act of 1795 and annulling the 
patent to the Georgia Co. On 14 May, 1803, Peck 
conveyed to Fletcher, covenanting, inter alia, that his 
title had been " in no way constitutionally or legally 
impaired by virtue of any subsequent act of any sub- 
sequent legislature of the state of Georgia." Fletcher 
brought covenant sur deed against Peck in the Circuit 
Court, declaring, inter alia, that the statute of 1796 was 
enacted by reason of fraud practiced in securing the 
enactment of the statute of 1795 and was an impairment 
of Peck's title. Peck pleaded that he was a purchaser 
for value and without notice, etc. Fletcher demurred, 
and the court entered judgment thereon for Peck, which 
judgment was affirmed in the Supreme Court on a writ 
of error, the ground of decision being, that the constitu- 
tional prohibition comprehends contracts executed, 
including grants, as well as contracts executory, and 
that the states being prohibited from passing " any bill 
of attainder, ex post facto law, or law impairing the obli- 
gation of contracts," and the prohibition of bills of 
attainder and ex post facto laws being a restraint upon 
governmental action, there is not to be implied " in 
words which import a general prohibition to impair the 
obligation of contracts, an exception in favour of the 
right to impair the obligation of those contracts into 
which the state may enter." It has, therefore, since 
1810, been settled that the term " contract " includes 
not only^ contracts between individuals, private and cor- 



166 IMPAIRMENT OF CONTRACTS. 

porate, but also contracts, executed and executory j, 
between the state and individuals, private and corporate. 
Following in the line of Fletcher i'. Peck, it has been 
held that, a grant of land by a state to a railway cor- 
poration is a contract whose obligation is impaired by a 
subsequent act resuming the land,-*^ that a state can- 
not deprive of his right to recover mesne profits from a 
disseisor one whose title vested under a compact 
between that state and another state, and who under that 
compact was entitled to recover mesne profits,^ and that 
a state cannot, by statute, divest religious corporations 
of their title to land acquired under colonial laws ante- 
cedently to the revolution.^ 

68. When in 1812 the case of New Jersey v. Wil- 
son,^ came before the Supreme Court, the doctrine of 
Fletcher v. Peck necessarily required the court to hold 
that the state was bound by the express contract con- 
tained in a statute which authorized the purchase of 
certain land for the remnant of the tribe of Delaware 
Indians, and which, in terms, declared that the land so 
purchased " shall not hereafter be subject to any tax," 
and that that contract forbade the subsequent taxation 
of such lands, after their sale to other parties with the 
state's consent. The legal inviolability of a state's con- 
tract to exempt lands from state taxation having been 
thus established, it followed that a similar contract with 
regard to corporate franchises or assets was entitled to 
the like protection, and that contracts of exemption from 
state taxation, contained in corporate charters, or stipu- 
lated by subsequent agreement, if made in express terms 
and supported by an adequate consideration, constitute 
contracts so binding u|)on the state that their obligation 
cannot be impaired by a subsequent repeal of the charter, 

1 Davis V. Gray, 16 Wall. 203. ^ Terrett v. Taylor, 9 Cr. 43. 

2 Green i;. Biddle, 8 Wheat. 1. * 7 Cr. 164. 



EXEMPTION FKOM TAX. 167 

or by an imposition of a rate of taxation inconsistent 
with the state's contract.-^ Thus, the line and rolling 
stock of a railway cannot be taxed when its charter 
exempts from taxation its "property" and "shares;"^ 
nor can the shares of the capital stock of a corporation 
be taxed in the hands of the shareholders, when the 
charter requires the corporation to pay to the state a 
tax on each share of the stock " in lieu of all other 
taxes ;" ^ nor can the gross receipts of a corporation be 
taxed when its charter exempts the corporation from 
taxation;'^ nor can a corporation be taxed in excess of 
the limits specifically designated in the charter,^ or 
other contract.^ Nor ca,n a municipal corporation in 
the exercise of authority delegated to it by statute assess 
a street railway for a new paving of a street, when the 
railway has contracted with the municipality to keep 
the street in repair, for the acceptance of that contract 
limits by necessary implication the obligation of the 
railway to repairs, and relieves it from liability for bet- 
terments ; '^ nor can property held by a charitable cor- 
poration as an investment be taxed, when its charter 
exempts from taxation all property of whatever kind or 
description belonging to or owned by the corporation.^ 
An adequate consideration for a charter exemption from 
taxation is to be found in the exercise by the corj)ora- 
tion of the powers conferred by the charter, or, in the 

1 Jefferson Branch Bank v. Skelly, 1 Black 436 ; W. E. E. v. Eeid, 18 Wall. 
264; E. & G. E. E. v. Same, ibid. 269; Chicago v. Sheldon, 9 Wall. 50; 
Humphrey v. Pegues, 16 id. 244 ; P. E. E. v. Magwire, 20 id. 36 ; New Jersey 
V. Yard, 95 U. S. 104 ; University v. People, 99 id. 309 ; Asylum v. New- 
Orleans, 105 id. 362. 

2 ^v_ R_ !>_ ,j,_ lieid, 13 Wall. 264. 

^ Farrington v. Tennessee, 95 U. S. 679. 

* P. E. E. V. Magwire, 20 Wall. 36. 

5 E. & G. E. E. V. Eeid, 13 Wall. 269. 

« New Jersey v. Yard, 95 U. S. 104. 

' Chicago V. Sheldon, 9 Wall. 50. 

^ University v. People, 99 U. S. 309 ; Asylum v. New Orleans, 105 id. 362. 



168 IMPAIRMENT OF CONTRACTS. 

case of corporations for charitable purposes, in tlie con- 
tribution of funds to the corporation for the accomplish- 
ment of its benevolent purpose.^ So also the building 
by a railway corporation of its line, under the terms of 
a statute amendatory of its charter and granting in 
express terms an exemption from taxation, constitutes a 
consideration for the exemption, though the original 
charter granted a power to the corporation, which it did 
not exercise, to build the line.^ Statutory exemptions 
from state taxation not incorporated in charters and 
unsupported by a consideration moving to the state, or 
from the exempted corporation, do not constitute irre- 
pealable contracts of exemption, but are subject to modi- 
fication or repeal in the exercise of legislative discretion ; 
as, for instance, bounty laws offering such an exemption 
as an inducement for the organization of corporations to 
develop a particular industry,^ or voluntary grants of 
exemption of the real property of a charity from taxa- 
tion.* 

If the Constitution of a state prohibits legislative 
grants of exemption from state taxation, such a grant, 
though accepted in good faith by the exempted corpo- 
ration, cannot constitute a contract whose obligation is 
impaired by a subsequent imposition of taxation.^ Such 
a constitutional prohibition operates to extinguish an 
exemption made by contract in the case of a railway, 
which having been exempted before the adoption of the 
constitutional prohibition, had been after the adoption 
thereof sold under foreclosure to reorganize the corpo- 
ration.^ On the same principle, a statutory consoli- 

1 University v. People, 99 U. S. 309 ; Asylum v. New Orleans, 105 id. 362. 

^ Humphrey v. Pegues, 16 Wall. 244. 

^ Salt Co. V. East Saginaw, 13 Wall. 273. 

* Christ Church v. Philadelphia, 24 How. 300. 

5 Railroad Co. v. Gaines, 97 U. S. 697. 

^ Trask v. Maguire, 18 Wall. 391 ; Morgan v. Louisiana, 93 U. S. 217. 



RESEEVATION^S IN CHAETEES. 169 

dation of two railways works the dissolution of the 
original corporation, and subjects the consolidated cor- 
poration to the operation of an amended state Consti- 
tution, which took effect subsequently to the incorpo- 
ration of the original corporations, but prior to their 
consolidation ; and, therefore, the state legislature may, 
without impairment of the obligation of the contract, 
prescribe rates for the transportation of passengers by 
the consolidated corporation, though one of the original 
corporations was by charter protected against such 
legislative regulation/ General statutory prohibitions 
of the exemption of corporations from state taxation are 
not binding on subsequent legislatures,^ unless referred 
to in, and incorporated with, subsequently granted 
charters.^ In the case of a statutory consolidation 
accepted by two railways, each of whose charters con- 
tained a limited exemption from taxation, a reservation 
by a general statute before the enactment of the con- 
solidating act and incorporated therewith, operates to 
extinguish the limited exemption contained in the 
original charters.* Of course, if the state in the charter 
reserves the right to alter, modify, or repeal that 
charter, that reservation authorizes any such amend- 
ment of the charter granted as will not defeat nor 
substantially im23air the obligation of the grant or any 
rights that may be vested thereunder.^ The first sug- 
gestion of any such reservation is to be found in the 
judgment of Parsons, C. J., in Wales v. Stetson,^ which 
is cited by Miller, J., in Greenwood v. Freight Co.'^ 
A provision in a charter, or a general statute incorpo- 

1 Shields V. Ohio, 95 U. S. 319. 

'^ New Jersey v. Yard, 95 U. S. 104. 

^ Greenwood v. Freight Co., 105 U. S. 13 ; Tomlinson v. Jessup, 15 Wall. 454. 

* A. & G. E. R. V. Georgia, 98 U. S. 357. 

s Close V. Glenwood Cemetery, 107 U. S. 466 

•« 2 Mass. 146. ^ 105 U. S. 13, 19. 



170 IMPAIRMENT OF CONTKACTS. 

rated therewith, that that charter shall not be alterable 
in any other manner than by an act of the legislaturCj 
operates as a reserved power authorizing a statutory 
amendment of the charter.^ Express contracts of ex- 
emption from state taxation are to be strictly construed. 
Thus a charter of a railway imposing an annual 
tax assessed on the cost of the line, reserving the right 
to impose taxes on the gross earnings of the corpora- 
tion and stipulating that the above several taxes 
shall be in lieu of other taxation, is not a contract whose 
obligation is impaired by a subsequent statute taxing 
lands owned by the railway and mortgaged as security 
for its bonded debt, but not used in the construction or 
operation of its line.^ So a provision in the charter of 
a ferry company that it "shall be subject to the same 
taxes as are now or hereafter may be imposed on other 
ferries," does not exempt the corporation from liability 
to pay an annual license fee on each of its boats, under 
the requirements of a municipal ordinance enacted under 
due legislative authority.^ So the charter of a street 
railway requiring the payment to the municipality of 
such annual license " as is now paid by other railway 
companies," is to be construed to mean that the com- 
pany shall not at any future time be required to pay a 
greater license than that then required to be paid by 
other companies.'* A charter granting to a corporation 
all the rights, powers, and privileges " granted by the 
charter " of another corporation, confers an exemption 
from state taxation contained, not in the charter to which 
reference is made, but in a statute amendatory thereof, 
and the exemption thus conferred constitutes a contract 

^ Pennsylvania College Cases, 13 Wall. 190 ; Holyoke Company v. Lyon, 15 
id. 500 ; Miller v. Stsite,ibid. 478. 

2 Tucker v. Ferguson, 22 V^all. 527. 

3 W. F. Co. V. East St. Louis, 107 U. S. 365. 
^ U. P. Ey. V. Philadelphia, 101 U. S. 528. 



EXPEESSED CHAETEE EIGHTS. 171 

whose obligation cannot be impaired by a subsequent 
repeal of the statute conferring by reference the right 
of exemption.^ So a state may make a contract con- 
ferring the exclusive right of building a toll bridge by 
reference to a previously enacted statute.^ On the other 
hand, the incorporation of a railway by a charter in- 
vesting the company " for the purpose of making and 
using the said road with all powers, rights, and privi- 
leges, and subject to the disabilities and restrictions that 
have been conferred and imposed upon " another rail- 
way company, whose charter contained an express ex- 
emption from taxation, does not confer that exemption 
on the former company.^ So in the case of the merger 
of a corporation having an exemption from state 
taxation for a limited period with another corporation 
having an unlimited exemption, the consolidating statute 
not granting any exemption, the consolidated corpo- 
ration cannot claim as to property acquired from the 
first mentioned corporation any exemption beyond the 
limits contained in the charter of that corporation.^ 

69. Express stipulations in a charter as to the privi- 
leges thereby conferred on the corporation are also within 
the protection of the constitutional prohibition ; thus, a 
provision in the charter of a toll bridge company that it 
shall not be lawful for any person to erect another 
bridge within a specified distance of the bridge thereby 
authorized, constitutes a contract binding the state not 
to authorize the construction of such other bridge,^ but 
the authorization by the state of the construction of a 
railway viaduct does not impair the obligation of such 

^ Humphrey v. Pegues, 16 Wall. 244. 

2 Bingham ton Bridge, 3 Wall. 51. 

3 E. E. V. Gaines, 97 U. S. 697. 

* Tomlinson v. Branch, 15 Wall. 460. 

* Binghamton Bridge, 3 Wall. 51 ; Bridge Proprietors v. Hoboken, 1 id. 
116. 



172 IMPAIRMENT OF CONTRACTS. 

a contract.^ So, also, a statute forbidding the transfer 
by any bank of any note, bill receivable, or other evi- 
dence of debt, impairs the obligation of a contract 
created by the grant in a charter of a bank of power to 
receive, hold, and grant chattels and effects of what 
kind soever, and to receive deposits and discount 
notes.^ On the same principle a state is bound by its 
express contracts, not including appointments to public 
office, between the state and an individual for the per- 
formance of special services for a stipulated compensa- 
tion,^ by its grants of franchises and exclusive privileges, 
such as the privilege of supplying a municipality with 
water,^ or gas,^ by its contracts conceding peculiar privi- 
leges to state obligations, as for instance, stipulating that 
coupons of state bonds should be receivable for taxes,^ or 
that the circulating notes of a bank should be receivable 
in payment for taxes,^ or of other debts due to the state,^ 
by contracts made by a political subdivision of the state 
for the payment of the principal of, or interest upon, 
the public debt of that subdivision,^ and by the con- 
tracts of a corporation, whose sole shareholder is the 
state, for the payment of the corporate debt.^° Contracts 
between two or more states, under which private rights 
have vested,^^ are so far protected that neither state can 

^ Bridge Proprietors v. Hoboken, 1 Wall. 116. 

2 Planter's Bank v. Sharp, 6 How. 301. 

3 Hall V. Wisconsin, 103 U. S. 5. 

* New Orleans Water Works v. Rivers, 115 U. S. 674 ; St. Tammany Water 
Works V. N. O. Water Works, 120 id. 64. 

5 New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650 ; Louisiana 
Gas Co. V. C. Gas Co., ibid. 683. 

^ Hartmau'Z). Greenhow, 102 U. S. 672; Virginia Coupon Cases, 114 id. 
270; Royall v. Virginia 116 id. 572; Same v. Same, 121 id. 105. 

7 Keith V. Clark, 97 U. S. 454 ; Furman v. Nichol, 8 Wall. 44. 

8 Woodruft V. Trapnell, 10 How. 190; Paut v. Drew, ibid. 218; Trigg i>. 
Same, ibid. 224. 

9 Murray v. Charleston, 96 U. S. 432. 

^'^ Curran v. Arkansas, 15 How. 304 ; Barings v. Dabney, 19 Wall. 1. 
" Green v. Biddle, 8 Wheat. 1. 



GEANTS TO MUNICIPALITIES. 173 

annul or modify such, contracts to the prejudice of the 
private rights so vested. 

70. There can be no contract between a state and 
a political subdivision of a state, such as a munici- 
pality, giving to the municipality a vested right to 
property, for all such property rights are held by the 
municipality in trust for the state, and are subject to re- 
vocation at the state's pleasure.^ Therefore, a statute 
imposing a pecuniary penalty upon a railway, payable 
by it to a county of the state for its failure to locate the 
railway on a certain line, does not constitute a contract 
between the county and the railway whose obligation is 
impaired by a subsequent repeal of the statute.^ On 
the same principle, a legislative charter of a railway, 
granting to it power to appropriate public wharves 
erected by a municipality under a prior legislative grant 
of authority, does not impair the obligation of any con- 
tract, nor infringe upon the rights of the municipality.^ 

71. The next mooted question under this clause of 
the Constitution was whether or not a charter of incor- 
poration granted by a state constituted an implied con- 
tract on the part of the state, whose obligation the state 
could not be permitted to impair by a subsequent repeal 
or modification of the charter. The leading case is 
Trustees of Dartmouth College v. Woodward,* judg- 
ment in which was rendered in 1819, and the facts in 
which were that, in 1769, the E-oyal Governor of the 
Province of New Hampshire, acting in the name of the 
King, granted to Dr. Wheelock and eleven other 
persons a charter, whereby they were incorporated under 
the title of " The Trustees of Dartmouth College," with 

1 East Hartford v. Hartford Bridge Co., 10 How. 511 ; Maryland v. B. &0. 
E. E., 3 id. 551 ; E. E. v. Ellerman, 105 U. S. 166. 

2 Maryland v. B. &0. E. E., 3 How. 534. 

3 E. E. V. Ellerman, 105 U. S. 166. * 4 Wheat. 518. 



174 IMPAIRMENT OF CONTRACTS. 

perpetual succession, and with " the whole power of 
governing the college, of appointing and removing 
tutors, of fixing their salaries, of directing the course of 
study to be pursued by the students, and of filling 
vacancies created in their own body." After the 
charter had been granted to, and accepted by, the cor- 
poration, " property both real and personal, which had 
been contributed for the benefit of the college, was con- 
veyed to and vested in the corporate body." Acts of 
the legislature of the state of New Hampshire, passed 
on 27 June, and 18 December, 1816, increased " the 
number of trustees to twenty-one," gave " the appoint- 
ment of the additional number to the executive of the 
state," and created " a board of overseers, to consist of 
twenty-five persons, of whom twenty-one are also ap- 
pointed by the executive of New Hampshire," with 
" power to inspect and control the most important acts 
of the trustees." Prior to the enactment of these 
statutes, one Woodward was the secretary and treasurer 
of the corporation, and, as such, he had in his possession 
the charter, corporate seal, records, and certain chattels 
belonging to the corporation ; in 1816 the trustees re- 
moved him from office; in 1817 he was appointed Sec- 
retary and Treasurer of the new Board of Trustees, 
which was organized under the statutes of 1816, and, as 
he refused to surrender to the original corporation the 
property which was in his hands, that corporation 
brought an action of trover in a court of the state of 
New Hampshire against him, in which the facts as 
stated having been found by a special verdict, judgment 
was entered in favour of the defendant by the state court 
of last resort, and the cause was removed by writ of 
error to the Supreme Court of the United States, which 
reversed the judgment of the state court, the ground of 
decision being that the college as incorporated was a 



CHAETEES AS CONTEACTS. 175 

private eleemosynary corporation ; that its charter, in 
terms, and by force of the donations of funds made on 
the faith of it, constituted a contract between the colo- 
nial government and the corporation as the repre- 
sentative of the donors of those funds ; that it was an 
implied, but essential, condition of that contract that that 
charter should not be so modified, without the consent of 
the corporation, as to substitute governmental control 
for the will of the donors ; that, by the revolution, the 
dutie'Sjas well as the powers, of government devolved on 
the jDCople of New Hampshire, and the obligations im- 
posed by the charter were the same under the state 
government, as they had formerly been under the 
colonial government ; and that the effect of the statutes 
of 1816 was to substitute the will of the state for the 
will of the donors, and, to that extent, to impair 
the obligation of the contract between the state 
and the corporation, as made by the charter. 
Marshall, C. J., in his judgment,^ after accepting the 
suggestion, that " taken in its broad, unlimited sense, 
the clause would be an unprofitable and vexatious inter- 
ference with the internal concerns of a state, would un- 
necessarily and unwisely embarrass its legislation, and 
render immutable those civil institutions, which were 
established for purposes of internal government, and 
which, to subserve those purposes, ought to vary with 
varying circumstances ;" and " that as the framers of the 
Constitution could never have intended to insert in that 
instrument a provision so unnecessary, so mischievous, 
and so repugnant to its general spirit, the term ' contract ' 
must be understood in a more limited sense," expressly 
conceded, that " the framers of the Constitution did not 
intend to restrain the states in the regulation of their 
civil institutions, adopted for internal government, and 

1 4 Wheat, pp. 628, 629. 



176 IMPAIEMENT OF CONTEACTS. 

that the instrument they have given us is not to be sa 
construed," and that " the provision of the Constitution 
never has been understood to embrace other contracts, 
than those which respect property, or some object of 
value, and confer rights which may be asserted in a 
court of justice," put his judgment on the ground that 
the charter of the College constituted a contract as here- 
inbefore stated. Applying to the Dartmouth College 
Case,, the test so clearly stated by Marshall, C. J., in 
Ogden V. Saunders,^ that " the positive authority of a 
decision is co-extensive with the facts on which it is 
made," it is obvious that the case is an authority for 
the proposition, that the grant by a state of a charter 
of incorporation for private purposes unconnected with 
the administration of government constitutes a con- 
tract between the state and the corporation, whose obli- 
gation is not to be permitted to be impaired by a 
material modification of the terms of the charter, 
either expressed or implied, and that, in every such 
charter it is an implied condition of the contract, that 
the state shall not by subsequent legislation change 
either the purpose of the corporation, or its system of 
administration. 

72. The later cases have narrowed the doctrine of 
the Dartmouth College Case with regard to the implied 
contracts created by charters, and thereby made obliga- 
tory on the states granting them. In Providence 
Bank v. Billings,^ it was decided, in 1830, that the 
grant of corporate privileges does not carry with it any 
implied exemption of either the corporate franchise, or 
property, from state taxation, and this principle has 
been re-asserted in the later cases of Memphis Gaslight 
Co. V. Shelby County,^ N. M. R. R. v. Maguire,^ Bailey 

1 12 V\^heat. 333. ^ 109 u. S. 398. 

2 4 Pet. 575. * 20 Wall. 46. 



IMPLIED PRIVILEGES. 177 

v. Maguire/ and Tucker v, Ferguson.^ Following in 
the same line, it lias been held that the imposition in 
a charter of a specific form, or rate of taxation, is not 
to be construed in the absence of an express contract 
of exemption from other taxation to constitute an im- 
plied exemption from such other taxation.^ 

73. On the same principle, it has been held that, legis- 
lative grants of exclusive privileges are, in the interests 
of the public, to be strictly construed, and, therefore, 
charters of incorporation do not vest in the corporation 
any powers other than those expressly granted.'* From 
this it follows that charters do not grant by implication 
exclusive privileges or- exemptions ; thus the creation 
of a corporation with power to erect a toll bridge, or to 
operate a ferry, does not impliedly bind the state not to 
license the establishment of a competing bridge, or 
ferry, either toll or free.^ Nor does the charter of a 
corporation by a state constitute a contract by the state 
either with the corporation, or with the creditors 
thereof, that the corporation shall not be subsequently 
dissolved after due legal proceedings founded upon a 
forfeiture of the corporate franchises either for misuser 
or for non-user.^ 

74. There is no implied contract in a charter, that 
the state will exempt the corporate franchises and prop- 

1 22 Wall. 215. 2 22 id. 527. 

3 The Delaware Eailroad Tax, 18 Wall. 206 ; Erie Eailway v. Penna., 21 
Wall. 492 ; The License Cases, 5 id. 462 ; Home Insurance Co. v. Augusta, 93 
U. S. 116. 

* Eioe V. M. & N. W. R. R., 1 Bl. 358 ; Charles River Bridge v. Warren 
Bridge, 11 Pet. 544 ; Mills v. St. Clair County, 8 How. 581 ; R. R. R. v. L. R. 
R., 13 How. 81 ; O. L. & T. Co. v. Debolt, 16 How. 435 ; Perrine v. C. C. Co., 
9 How. 192 ; J. B. Bank v. Skelly, 1 Bl. 436 ; The Binghamton Bridge, 3 
Wall. 51, 75. 

^ Fanning i>. Gregoive, 16 How. 524; Turnpike Co. v. State, 3 Wall. 210; 
Wright V. Nagle, 101 U. S. 791." 

« Mumma v. The Potomac Co., 8 Pet. 281, 286 ; Chicago Life Ins, Co. v. 
Needles, 113 U. S. 574, 584. 
12 



178 IMPAIRMENT OF CONTRACTS. 

erty from the operation of the police power of the state. 
A state, therefore, may limit by subsequent legislation 
the rates of fare and freight charged by its railways.^ A 
state may, in the case of a railway whose charter au- 
thorizes it from time to time to fix, regulate, and receive 
tolls and charges vest in a commission by a subsequent 
statute the power of fixing those rates.^ Nor can a state 
surrender by implication, the right to regulate by 
subsequent legislation the location of railway stations 
and the stoppage of trains at such stations.^ A state 
may by statute regulate the rates of a water corporation 
whose charter vested the power of fixing the rates in a 
board of commissioners, some of whom were appointed 
by the company.* A state may forbid the continued 
prosecution of their respective trades by corporations 
organized for the purpose of manufacturing and selling 
liquors,^ or selling lottery tickets and drawing lotteries,^ 
or rendering dead animals and ofial into fertilizers.'^ So 
also a state may, in derogation of previous grants of 
exclusive privileges for the conduct of a business,^ which 
is necessarily subject to police regulation, such as that 
of slaughtering cattle, authorize others to conduct the 
same business. 

75. In Dartmouth College v. Woodward,^ Marshall, 
C. J., conceded that " the framers of the Constitution 
did not intend to restrain a state from the regulation of 

1 C, B. & Q. E. E. V. Iowa, 94 U. S. 155 ; Peik v. C. & N. W. Ey., ibid. 164 ; 
M. & St. P. E. E. V. Atlee, ihid. 179 ; W. & St. P. E. E. v. Blake, ihid. 180; Stone 
V. Wisconsin, ihid. 181 ; Euggles v. Illinois, 108 U. S. 526. 

'^ Stone V. F. L. & T. Co., 116 U. S. 307 ; Same v. I. C. E. E., ihid. 347. 

3 M. H. & N. E. E. V. Hamersly, 104 U. S. 1. 

* S. V. Water Works v. Schottler, 110 U. S. 347. 

5 Beer Co. v. Massachusetts, 97 U. S. 25. 

6 Phalen v. Virginia, 8 How. 163; Boyd v. Alabama, 94 U. S. 645; Stone v. 
Mississippi, 100 id. 814. 

^ Fertilizing Co. v. Hyde Park, 97 U. S. 659. 

« Butchers' Union v. Crescent City, 111 U. S. 746. 

9 4 Wheat. 629. 



IMPLIED CONTEACTS. 179 

its civil institutions adopted for internal govern- 
ment." On this principle, there can be no implied con- 
tract on the part of a state that it will not amend its 
Constitution, in so far as that Constitution deals with the 
administration of the public concerns of the state.^ Nor 
can a state legislature bind subsequent legislatures as to 
the exercise of the powers of sovereignty over the 
political subdivisions of the state, and over its muni- 
cipal corporations with regard to subject-matters of pub- 
lic and not of private interest, as, for instance, the loca- 
tion of a county seat,^ or the boundaries of its munici- 
palities,^ or the sale of property held by a municipal- 
ity for public purposes, such as water works,* or the 
appropriation under state authority of municipal obli- 
gations by their holders as a set-off against municipal 
claims against those holders ; ^ nor does the appointment 
by the state of a public officer for a fixed term for a 
stipulated compensation constitute a contract between 
the state and the appointee whose obligation is impaired 
by either the reduction of his compensation or his 
removal from office,^ but after the duties have been per- 
formed by the appointee of a municipal corporation 
during the term of his office there is a contract whose 
obligation is impaired by a subsequent statute abolish- 
ing the power of taxation for the payment of his com- 
pensation.^ Of course, in the case of an officer appointed 
under a statute which in terms defines the tenure of the 
office to be according to law, a subsequent statute remov- 
ing him is not an impairment of the contract.* 

^ Church V. Kelsey, 121 U. S. 282. 

^ Newton v. Commissioners, 100 U. S. 548. 

3 U. S. V. Memphis, 97 U. S. 284. 

* New Orleans v. Morris, 105 U. S. 600. 

s Amy V. Shelby County, 114 TJ. S. 187. 

^ Butler V. Pennsylvania, 10 Howard 402. 

' Fiskt). J. Police Jury, 116 U. S. 131. 

8 Head?;. University, 19 Wall. 526. 



180 IMPAIRMENT OF CONTEACTS. 

76. Thestate's consent tobesued being voluntary and of 
grace, that consent does not constitute a contract whose 
obligation can be impaired by a subsequent repeal of the 
statute permitting such suit/ especially where the statute 
authorizing the suit has provided no means for the enforce- 
ment of any judgment that may be rendered against the 
state. Under such circumstances the state may, by sub- 
sequent legislation, withdraw its consent to be suedo^ In 
this connection, that which was forcibly said by Mathews, 
J., in the judgment of the court in the case of In re 
Ayres,^ may well be borne in mind. The learned judge 
said : " it cannot be doubted that the XI Amendment 
to the Constitution operates to create an important dis- 
tinction between contracts of a state with individuals 
and contracts between individual parties. In the case 
of contracts between individuals, the remedies for their 
enforcement or breach, in existence at the time they were 
entered into, are a part of the agreement itself, and con- 
stitute a substantial part of its obligation.^ That obliga- 
tion . . . cannot be impaired by any subsequent 
legislation. Thus, not only the covenants and conditions 
of the contract are preserved, but also the substance of 
the original remedies for its enforcement. It is different 
with contracts between individuals and a state. In re- 
spect to these, by virtue of the XI Amendment to the 
Constitution, there being no remedy by a suit against the 
state, the contract is substantially without sanction, ex- 
cept that which arises out of the honour and good 
faith of the state itself, and these are not subject to 
coercion. Although the state may, at the inception of 
the contract, have consented as one of its conditions to 

1 Beers v. Arkansas, 20 How, 527 ; Bank of Washington v. Same, ihid. 530. 

2 M. & C. E. R. V. Tennessee, 101 U. S. 337 : S. & N. A. R. R. v. Alabama, 
ihid. 51. 

=* 123 U. S. 504. 

* Louisiana v. New Orleans. 102 U. S. 203. 



THE FORCE OF THE PROHIBITION. 181 

subject itself to suit, it may subsequently withdraw tbat 
consent and resume its original immunity, without any 
violation of the obligation of its contract in the consti- 
tutional sense." ^ 

77. The force and effect of the prohibition, as con- 
strued by the court, is, that a state may not, by any law 
or by any act to which the state, by its enforcement 
thereof, gives the force of a law, deprive a party of the 
legal right of enforcing, or obtaining compensation for 
the breach of, an express contract, executed or execu- 
tory, between individuals, or between a state and indi- 
viduals, but a state may regulate or limit the remedies 
of the contracting parties, provided that it leaves in force 
a substantial part of the legal remedies which subsisted 
at the time of the making of the contract. 

^ Beers v. Arkansas, 20 How. 527 ; Railroad Company v. Tennessee, 101 
U. S. 337. 



CHAPTEE VI. 

EX POST FACTO LAWS AND BILLS OF ATTAINDER. 

78. The constitutional provisions. 

79. The distinction between retrospective and ex post facto laws. 

80. J5Ja; posf/acto laws defined. 

81. Illustrations of ex post facto laws. 

82. Illustrations of laws which are not ex post facto. 

83. Bills of attainder and bills of pains and penalties. 

78. Section 10 of article I of the Constitution declares 
that " no state shall . . . pass any bill of attainder 
or ex post facto law." Section 9 of article I of the Con- 
stitution, restricting the powers of Congress, declares 
that " no bill of attainder or ex post facto law shall be 
passed." 

79. JEx post facto laws relate to criminal, and not to 
civil, procedure. They are necessarily retrospective, but 
all retrospective laws are not ex post facto.^ State laws 
which operate retrospectively, or which divest antece- 
dently vested rights of property, are not prohibited by the 
Constitution of the United States, if they are not ex post 
facto laws, and if they do not impair the obligation of con- 
tracts.^ A state legislature, unless restrained by the 
Constitution of the state, may, therefore, enact statutes 
setting aside a decree of a court of probate, refusing to 

1 Calder v. Bull, 3 Dall. 386 ; Watson v. Mercer, 8 Pet. 88, 110 ; Carpenter 
V. Pennsylvania, 17 How. 456. 

* Calder v. Bull, 3 Dall. 386. 

3 Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cr. 138 ; Ogden v. Saun- 
ders, 12 Wheat. 266 ; Satterlee v. Matthewson, 2 Pet. 380 ; Watson v. Mercer, 
8 Pet. 88, 110; Carpenter v. Pennsylvania, 17 How. 456; B. & S. E. R. v^ 
Nesbit, 10 How. 395 ; Livingstone v. Moore, 7 Pet. 469. 

182 



RETEOSPECTIVE LAWS. 183 

allow probate of a will, and granting a rehearing by the 
court of probate with liberty of appeal therefrom, after 
the time limited by existing laws for an appeal has 
passed;^ declaring that the relation of landlord and 
tenant exists between parties as to whom the courts of 
the state have decided, that that relation does not exist f 
curing defective acknowledgments of deeds by femes 
covert;^ construing by a declaratory statute, after the 
death of a decedent, existing tax laws so as to subject to 
a collateral inheritance tax the distributive shares of 
non-resident distributees;^ directing a county court to 
set aside an inquisition condemning certain land for the 
use of a railway and to order a new inquisition ;^ direct- 
ing the imposition of a tax according to an assessment 
theretofore made;^ and authorizing the sale of lands on 
which the state has a lien for debts due to it."^ Upon 
the same principle. Congress having passed an act for 
the admission of a territory as a state, and having in 
that act omitted to provide for the disposal of causes 
pending in the Supreme Court of the United States, on 
appeal from the territorial courts, may by a subsequent 
act pro23erly make provision for such causes, for such 
legislation is remedial.^ So also Congress may by statute 
impose a tax retrospectively.^ 

80. In Fletcher v. Peck,^° Marshall, C. J., defines an 
ex post Jacto law to be one " which renders an act 
punishable in a manner in which it was not pun- 

1 Calder v. Bull, 3 Ball. 386. 

2 Satterlee v. Matthewson, 2 Pet. 380. 

3 Watson V. Mercer, 8 Pet. 88. 

* Carpenter v. Pennsylvania, 17 How. 456. 
5 B. & S. K. R. V. Nesbit, 10 How. 395. 
® Locke ^i. jSTew Orleans, 4 Wall. 172. 
^ Livingstone v. Moore, 7 Pet. 469. 
8 Freeborn v. Smith, 2 Wall. 160. 
^ Stockdale v. The Insurance Companies, 20 Wall. 223. 
i» 6 Cr. 138. 



184 EX POST FACTO. 

ishable when it was committed." In Cummings v. 
Missouri/ Field, J., defines an ex post facto law, as 
" one which imposes a punishment for an act which 
was not punishable at the time it was committed ; 
or imposes additional punishment to that then pre- 
scribed ; or changes the rules of evidence by which 
less or different testimony is sufiicient to convict 
than was required." In Calder v. Bull,^ Chase, J., 
classified ex post facto laws as follows : — ^^ first, those 
that make an action, done before the passing of a law, 
and which was innocent when done, criminal, and 
punish such action ; second, those that aggravate a crime, 
or make it greater than it was when committed ; third, 
those that change the punishment and inflict greater 
punishment than the law annexed to the crime when 
committed ; and, fourth, those that alter the legal rules 
of evidence and receive less or different testimony to 
convict the offender than that required at the time of 
the commission of the offense." That classification is 
quoted with approval by Miller, J., in his judgment in 
Kring v. Missouri.^ 

81. Laws have been held to be ex "post facto, which, 
after the commission of an act, alter the situation of the 
accused to his disadvantage, as for instance, by provid- 
ing that the plea of autrefois convict should not at a 
second trial be a defense in the case of a prisoner con- 
victed of murder in the second degree under an indict- 
ment charging murder in the first degree, the law hav- 
ing been at the time of the commission of the crime 
that such a plea was a defense;^ or by requiring a 
clergyman,^ or a lawyer,*^ as a condition precedent to 
the practice of his profession, to take an oath that he 

1 4 V7all.325. * Kring v. Missouri, 107 U. S. 221. 

" 3 Dall. 386. ^ Cummings v. Missouri, 4 Wall. 277. 

s 107 U. S. 221. 6 Ex parte Garland, 4 Wall. 333. 



BILLS OF ATTAINDER. 185 

has not done an act, for the doing of which, when done, 
deprivation of office was not a legal penalty ; or by re- 
quiring one who applies to a court to o'pen a judgment 
rendered against him in absentia, to take oath, as a 
condition precedent to his obtaining the desired relief, 
that he has not done an act for the doing of which the 
deprivation of the right to sue in courts of justice was 
not by law antecedently imposed as a penalty.^ Upon 
the same principle. Congress cannot provide, by statute, 
that an act, which is not an ofiense against the law at 
the time of its doing, may become such by a subsequent 
independent act with which it has no necessary connec- 
tion ; as, for instance, that subsequent bankruptcy, 
either voluntary or involuntary, shall render criminal 
and punishable by imprisonment the obtaining of goods 
with intent to defraud at any time within three months 
before the commission of the act of bankruptcy.^ 

82. On the other hand, a law of a state changing the 
venue in a criminal case, though passed subsequently 
to the commission of the offense, is not ex post facto ; ^ 
nor is a law open to that objection, which, though 
passed after the commission of an offense, enlarges the 
class of persons who may be competent to testify as 
witnesses at the trial, as, for instance, by repealing a 
statutory prohibition of the admission of the testimony 
of convicted felons,^ nor is a law ex post facto which 
denies the exercise of the right of franchise to bigamists, 
or polygamists, for " the disfranchisement operates 
upon the existing state and condition of the person, 
and not upon a past offense." ^ 

83. A bill of attainder is defined by Field, J., in 
Cummings v. Missouri,^ as " a legislative act which in- 

1 Pierce v. Carskadon, 16 Wall. 234. * Hopt v. Utah, 110 U. S. 574. 

2 United States v. Fox, 95 U. S. 670. ^ Murphj- v. Ramsey, 114 U, S. 15. 

3 Gut V. The State, 9 Wall. 35. « 4 Wall. 323. 



186 BILLS OF PAINS, ETC. 

flicts punishment witliout a judicial trial," and he adds, 
" if the punishment be less than death, the act is 
termed a bill of pains and penalties. Within the 
meaning of the Constitution, bills of attainder include 
bills of pains and penalties." It has been held that a 
state Constitution, requiring clergymen as a condition 
precedent to the exercise of their profession, to take 
oath that they had not committed certain designated 
acts, some of which were at the time offenses subject to 
legal penalties, and others of which were innocent 
acts,^ and that a state statute requiring one who applied 
to a court to open a judgment rendered against him m 
absentia, to take oath that he had not committed cer- 
tain designated public offenses,^ and that an act of Con- 
gress, requiring a lawyer, as a condition precedent to 
the exercise of his profession, to take an oath that he 
had not voluntarily borne arms against the United 
States, etc.,^ constituted in each case a bill of pains and 
penalties and was, therefore, subject to the constitu;^ 
tional prohibition against bills of attainder, inasmuch 
as, by legislative action, and without judicial investiga- 
tion, the statute imposed a punishment for an act done 
before the enactment of the statute, the oath being 
offered to the party incriminated as a means of com- 
pelling an admission of guilt. 

^ Cummings v. Missouri, 4 Wall. 277. 

2 Pierce v. Carskadon, 16 Wall. 234. 

3 Ex^arte Garland, 4 Wall. 333. 



CHAPTEE VII. 

THE PROHIBITION OF STATE BILLS OF CEEDIT. 

84. BiUs of credit defined. 

85. What are, and what are not, bills of credit. 

84. Section 10 of article I of tlie Constitution de- 
clares that "no state shall .... emit bills of credit." 
Bills of credit within the meaning of this constitutional 
provision are promissory notes issued by a state gov- 
ernment on its credit " intended to circulate through- 
out the community for its ordinary purposes as money," 
and redeemable on demand, or at a day certain in the 
future.^ 

85. A state, therefore, may not issue interest-bearing 
certificates in denominations "not exceeding ten dollars, 
nor less than fifty cents" receivable by the state in 
payment of taxes, and of debts due to the state, and 
payable to officers of the state in discharge of salaries 
and fees of office, and redeemable by the state under 
an arrangement that there shall be withdrawn " annu- 
ally from circulation one- tenth part of the certificates."^ 
Nevertheless, a state may incorporate a bank, of 
which that state shall be the sole shareholder, and it 
may authorize that bank to issue notes as circulation, 
without contravening the constitutional prohibition, the 
distinction being that such notes are issued, not on the 
credit of the state, but on the credit of the capital and 

^ Craig V. Missouri, 4 Pet. 411 ; Byrne v. Missouri, 8 id. 40 ; Briscoe v. 
Bank of Kentucky, 11 id. 257. 
^ Craig V. Missouri, 4 Pet. 410 ; Bvrne v. Missouri, 8 id. 40. 

187 



STATE BILLS OF CKEDIT. 

assets of the bank.^ Coupons of state bonds, though 
negotiable and receivable for taxes due to the state, are 
not bills of credit, for they are not intended to circulate 
as money .^ 

^ Briscoe v. Bank of Kentucky, 11 Pet, 257 ; Darrington v. The Bank of 
Alabama, 13 How. 12. 
2 Virginia Coupons Case, 119 U. S. 269, 284. 



CHAPTER VIII. 

STATE COMPACTS. 
86. What compacts are permitted, and what are forbidden. 

86. Section 10 of article I of the Constitution de- 
clares, that "no state shall enter into any treaty, alli- 
ance, or confederation No state shall, without 

the consent of Congress, .... enter into any agree- 
ment or compact with another state." This constitu- 
tional prohibition forbids compacts between a state and 
foreign nations, and also compacts between states of the 
United States, to which the assent of Congress has not 
been given. It is, therefore, decisive against the va- 
lidity of the confederation entered into by the insurgent 
states in 1861.^ It also forbids a governor of a state to 
enter into an agreemejit with a foreign government 
for the extradition of a prisoner.^ But states may, with 
the consent of Congress, enter into agreements touching 
conflicting boundaries,^ and, in such cases, the consent 
of Congress does not necessarily have to be given by 
congressional legislation expressly assenting to each of 
the stipulations of the agreement between the states, but 
that consent may be inferred from the legislation of 
Congress touching the subject-matter of the agreement.^ 

1 Williams v. Bruffy, 96 U. S. 176 ; Sprott v. U. S., 20 Wall. 459 ; Ford v. 
Surget, 97 U. S. 594 ; U. S. v. Keehler, 9 Wall. 83. 

^ Holmes v. Jemiison, 14 Pet. 540. 

^ Rhode Island v. Massachusetts, 12 Pet. 724 ; Missouri v. Iowa, 7 How. 
660 ; Florida v. Georgia, 17 id. 478 ; Alabama v. Georgia, 23 id. 505 ; Vir- 
ginia V. West Virginia, 11 Wall. 39; Poole v. Fleeger, 11 Pet. 185. 

* Virginia v. West Virginia, 11 Wall. 39. 

189 



CHAPTEK IX. 



FUGITIVES FKOM JUSTICE. 



87. The constitutional provision. 

88. The concurrent jurisdiction of the federal and state courts. 

87. Section 2 of article IV of the Constitution declares, 
that " a person charged in any state with treason, felony, 
or other crime, who shall flee from justice and be found 
in another state, shall on demand of the executive 
authority of the state from which he fled, be delivered 
up, to be removed to the state having jurisdiction of the 
crime." The words " treason, felony, or other crime," 
as Taney, C. J., said in Kentucky v. Dennison,^ " in 
their plain and obvious import, as well as in their legal 
and technical sense, embrace every act forbidden and 
made punishable by a law of the state. The word 
* crime ' of itself includes every offense, from the highest 
to the lowest in the grade of offenses, and includes what 
are called ' misdemeanors,' as well as treason and 
felony." ^ This constitutional provision imposes on the 
executive of the state in which the fugitive has taken 
refuge the duty of surrendering the fugitive upon 
demand made by the executive of the state from which 
the fugitive has fled, and upon proof made that he has 
been legally charged with crime, and this duty has been 
recognized by the act of Congress of 12 February, 
1793,^ but if the governor of the state to which the 

1 24 How. 99. 

2 See also Ex parte Keggel, 114 U. S. 642. 

3 1 Stat. 302 ; Eev. Stat., Sees. 5278, 5279. 

190 



FUGITIVES FROM JUSTICE. 191 

fugitive has fled refuses to deliver him up to justice, 
*' there is no power delegated to the general govern- 
ment, either through the judicial department or any- 
other department, to use any coercive means to compel 
him."^ The Supreme Court of the United States, there- 
fore, will not issue a mandamus to compel the perfor- 
mance by a governor of a state of his constitutional duty 
of surrendering to another state a fugitive from the 
justice of that state.^ 

88. An alleged fugitive from justice may petition 
a court of the United States for a writ of habeas 
corpus to inquire into the legality of his detention, 
but as the responsibility of determining whether or 
not the alleged fugitive from justice be in fact a fugi- 
tive from justice, rests upon the executive of the state 
to which the fugitive has fled, a court of the United 
States will not discharge the fugitive upon the hearing 
of the writ of habeas corpus, because, in its judgment the 
proof that the prisoner is a fugitive from justice is, 
though satisfactory to the executive, not as complete 
as might have been required.^ The alleged fugitive 
may also apply, by petition for a writ of habeas corpus, 
to a court of the state within which he is detained in 
custody for the purpose of being delivered to the justice 
of another state, for the jurisdiction of the courts of the 
United States over such petitions for writs of habeas 
corpus is not exclusive of the jurisdiction of the courts 
of the states in such cases, and the agent of the state 
demanding the surrender of the alleged fugitive is in no 
sense an ofiicer of the United States, nor otherwise 
exempt from the process of the courts of the states.^ 

^ per Taney, C. J., in Kentucky v. Dennison, 24 How. 109. 
^ Kentucky v. Dennison, 24 How. 66. 
3 Ex parte Eeggel 114 U. S. 642. 
* Eobb V. Connolly, 111 U. S. 624. 



CHAPTEK X. 

THE JUDICIAL POWER. 

89. The necessity for the existence of a judicial department of the United 

States. 

90. The constitutional provisions. 

91. The terms of the grant of federal jurisdiction. 

92. The exclusive jurisdiction. 

93. The original jurisdiction. 

94. Removal of causes from state courts to the courts of the United States. 

95. The appellate and supervisory jurisdiction. 

96. The requisites of a judicial case. 

97. Courts-martial. 

98. Impeachment. 

99. The judicial construction of the Constitution. 

100. The XI Amendment. 

101. Section 2 of Article III of the Constitution, and the IV Amendment. 

102. The V Amendment. 

103. The VI Amendment. 

104. The VII Amendment. 

105. The exemption of federal process from state control. 

106. Limitation of federal process by the reserved rights of the states. 

107. The limitations of state jurisdiction and process by the federal 

supremacy. 

108. The rule as to conflict of jurisdiction. 

109. The XIV Amendment as affecting state jurisdiction. 

110. The effect of Section 1 of Article IV of the Constitution. 

89. It is, under any form of government, essential to 
the enforcement of the laws with a due regard to the 
maintenance of the liberties of the citizens, that a 
judicial department, independent by reason of the 
security of the tenure of office and adequacy of com- 
pensation of the judges, should be charged with the 
duty, and entrusted with the power, of construing the 
laws, and of finally determining issues of fact and of 
law in prosecutions for crime and in litigations as to 
192 



THE JUDICIAL POWER. 193 

individual rights. Having regard to the relation be- 
tween the United States and the states, and bearing in 
mind that the United States cannot impose duties upon 
officers of the states, and compel the performance by 
those officers of the duties so imposed,^ it is, in an 
especial degree, essential that the United States should 
have the power of establishing courts of civil and 
criminal jurisdiction for the punishment of offenses 
against the laws of the United States, and for the pro- 
tection and enforcement of rights created by the Con- 
stitution, laws, and treaties of the United States. It is 
also necessary to the enforcement of the declared 
supremacy of the Constitution, laws, and treaties of the 
United States, that a court constituted by the United 
States with jurisdiction co-extensive with the territory 
subject to the Constitution, should be, so far as regards 
all subjects of judicial cognizance, the final arbiter by 
whom the construction of the Constitution of the 
United States is to be authoritatively determined,^ for 
otherwise the Constitution might have one meaning in 
one state, and a different meaning in another state, and 
it might be construed in one way in one court and in 
another way in another court,^ and if the legislative, 
executive, and judicial departments of the several states 
v/ere at liberty to conclusively determine for themselves 
the construction of that instrument, and the nature and 
the extent of the restraints upon freedom of state action 
imj^osed by it, those restraints would bind any one state 
only in so far as that state might choose to be bound at 
any particular time, and the inevitable result would be, 

^ Prigg V. Pennsylvania, 16 Pet. 539 ; Kentucky v. Dennison, 24 How. 66. 

2 Cohens v. Virginia, 6 Wheat. 264 ; Bank of Hamilton v. Dudley's Lessee, 
2 Pet. 429, 524 ; Dodge v. Woolsey, IS How. 331, 347 ; Martin v. Hunter's 
Lessee, 1 Wheat. 304. 

^ Marbury v. Madison, 1 Cr. 137 ; Van Home v. Dorrance, 2 Dall. 304; 
The Mayor v. Cooper, 6 Wall. 253 ; Norton v. Shelby County, 118 U. S. 443. 
13 



194 THE JUDICIAL POWER. 

as Marshall, C. J., said in Cohens v. Virginia,^ to pros- 
trate the federal " government and its laws at the feet of 
every state in the Union." 

90. In recognition of these principles, and in order to 
give practical effect to them, the Constitution has created 
a judicial department of the government of the United 
States. Section 1 of article III declares, that "the 
judicial power of the United States shall be vested in 
one Supreme Court, and in such inferior courts as the 
Congress may, from time to time, ordain and establish. 
The judges, both of the Supreme and inferior courts, 
shall hold their offices during good behaviour, and shall, 
at stated times, receive for their services a compen- 
sation, which shall not be diminished during their con- 
tinuance in office." Section 2 declares that " the 
judicial power shall extend to all cases, in law and 
equity, arising under this Constitution, the laws of the 
United States, and treaties made, or which shall be 
made, under their authority ; to all cases affecting am- 
bassadors, or other public ministers and consuls ; to all 
cases of admiralty and maritime jurisdiction ; to contro- 
versies to which the United States shall be a party ; to 
controversies between tw o or more states ; between a 
state and citizens of another state ; between citizens of 
different states; between citizens of the same state claim- 
ing lands under grants of different states, and between 
a state, or the citizens thereof, and foreign states, citizens, 
or subjects. In all cases affecting ambassadors, other 
public ministers, and consuls, and those in which a 
state shall be a party, the Supreme Court shall have 
original jurisdiction. In all the other cases before men- 
tioned, the Supreme Court shall have appellate juris- 
diction, both as to law and fact, with such exceptions 
and under such regulations as the Congress shall make." 

1 6 Wheat. 385. 



FEDERAL JURISDICTION. 195 

91. The Constimtioii has, therefore, conferred upon the 
courts of the United States jurisdiction in two classes of 
causes, depending in the one class on the character of the 
cause, and in the other class on the character of the parties.^ 

^ Cohens v. Virginia, 6 Wheat. 264, 378; Martin v. Hunter's Lessee, 1 
Wheat. 304, 331, 333 ; The Moses Taylor, 4 Wall. 411, 429. Jay, C. J., in his 
judgment in Chisholni v. Georgia, 2 Dall. 475, after referring to the decla- 
ration in the preamble to the Constitution, that that instrument was ordained, 
inter alia, " to establish justice," added, "it may be asked, what is the precise 
sense and latitude in which the words ' to establish justice,' as here used, are to 
be understood ? The answer to this question will result from the provisions 
made in the Constitution on this head. They are specified in the '2d section 
of the 3d article, where it is ordained, that the judicial power of the United 
States shall extend to ten descriptions of cases, viz., 1st: to all cases arising 
under this Constitution ; because the meaning, construction, and operation of 
a compact ought always to be ascertained by all the parties, or by authority 
derived only from one of them : 2d : to all cases arising under the laws of the 
United States ; because as such laws, constitutionally made, are obligatory on 
each state, the measure of obligation and obedience ought not to be decided 
and fixed by the party from whom they are due, but by a tribunal deriving 
authority from both the parties : 3d : to all cases arising under treaties made 
by their authority ; because, as treaties are compacts made by, and obligatory 
on, the wiiole nation, their operation ought not to be afiected or regulated by 
the lucal laws or courts of a part of the nation : 4th : to all cases affecting 
Ambassadors, or other public Ministers and Consuls; because, as these are 
officers of foreign nations, whom this nation is bound to protect and treat 
according to the laws of nations, cases afleeting them ought only to be cog- 
nizable by national authority: 5th: to all cases of Admiralty and Maritime 
jurisdiction ; because, as the seas are the joint property of nations, whose right 
and privileges relative thereto, are regulated by the law of nations and treaties, 
such cases necessarily belong to national jui isdiction : 6th : to controversies 
to which the United States shall be a party ; because in cases in which the 
whole people are interested, it would not be equal or wise to let any one state 
decide and measure out the justice due to others : 7th : to controversies be- 
tween two or more states; because domestic tranquillity requires that the 
contention of states should be peaceably terminated by a common judicatory ; 
and, because, in a free country justice ought not to depend on the voill of eitlier 
of the litigants : 8th : to controversies between a state and citizens of another 
state ; because in case a state (that is all the citizens of it) has demands 
against some citizens of another state, it is better that they should prosecute 
their demands in a naiionnl court than in a court of the state to which those 
citizens belong; the danger of irritation and criminations, arising from appre- 
hensions and suspicions of partiality, being thereby obviated. Because, in 
cases where some citizens of one state iiave demands against all the citizens of 
another state, the cause of liberty and the rights of men forbid that the latter 
should be the sole judges of the justice due to the latter ; and true republican 



196 THE JUDICIAL POWEK. 

"Cases, in law and equity, arising under this Consti- 
tution, the laws of the United States, and treaties 
made, or which shall be made, under their authority " 
include all subject-matters of litigation, civil or crim- 
inal, whose determination requires the application or 
construction of the Constitution, laws, or treaties of the 
United States/ " Cases affecting ambassadors, other 
public ministers, and consuls " are cases to which such 
officers are parties, or so far privies, that the determi- 
nation thereof will conclude their rights.^ " Cases of 
admiralty and maritime jurisdiction " comprehend liti- 

government requires that free and equal citizens should have free, fair, and 
equal justice : 9th : to controversies between citizens of the same state, claim- 
ing lands under grants of different states ; because, as the rights of the two 
states to grant the land are drawn into question, neither of the two states ought 
to decide the controversy : 10th : to controversies between a state or the citi- 
zens thereof, and foreign states, citizens, or subjects; because, as every nation 
is responsible for the conduct of its citizens toward other nations, all questions 
touching the justice due to foreign nations or people, ought to be ascertained 
by, and depend on, national authority." 

1 Waite, C. J., said in Starin v. New York, 115 U. S. 257, "the character of 
a case is determined by the questions involved. If from the questions it 
appears that some title, right, privilege, or immunity on which the recovery 
depends will be defeated by one construction of the Constitution, or of a 
law of the United States, or sustained by the opposite construction, the case 
will be one arising under the Constitution or laws of the United States, 
within the meaning of tliat term . . . otherwise not." In Tennessee v. 
Davis, 100 U. S. 264, Strong, J., said, " a case arising under the Constitution 
and laws of the United States may as well arise in a criminal prosecution as 
in a civil suit. . . . It is not merely one where a party comes into court 
to demand something conferred upon him by the Constitution or by a law or 
treaty. A case consists of the right of one party as well as the other, and may 
truly be said to arise under the Constitution or a law or a treaty of the United 
States, whenever its correct decision depends upon the construction of either. 
Cases arising under the laws of the United States are such as grow out of the 
legislation of Congress, whenever they constitute the right or privilege, or 
claim, or protection, or defense of the party, in whole or in part, by whom 
they are asserted." See also Cohens?). Virginia, 6 Wheat. 264, 379 ; Osborn v. 
Bank of the U. S., 9 id. 737, 824 ; The Mayor v. Cooper, 6 Wall. 247, 252 ; 
Gold W. & W. Co. V. Keyes, 96 U. S. 199, 201 ; E. E. Co. v. Mississippi, 102 
id. 135, 140; Ames v. Kansas, 111 id. 449, 462; K. P. Co. v. A. T. & S. F. E. 
E., 112 id. 414, 416 ; P. Savings Co. v. Ford, 114 id. 635, 641 ; P. E. Eemoval 
Cases, 115 id. 1, 11. 

2 U. S. V. Ortega, 11 Wheat. 467 ; Blyew v. U. S., 13 Wall. 581. 



FEDERAL JUEISDICTIOIf. 197 

gated cases with regard to acts done and rights created, 
or contracts to be performed, upon the high seas or in- 
land navigable waters, or with regard to contracts for 
the transportation of passengers or goods on the high 
seas or on navigable waters between different states.^ 
The phrase " controversies to which the United States 
shall be a party " requires no elucidation further than 
to note that the United States, as a sovereignty, cannot 
be sued without its own consent,^ and the constitutional 
provision does not impose upon Congress any duty to 
constitute tribunals to take cognizance of claims against 
the United States. 

The phrase, controversies " between citizens of differ- 
ent states," vests in the courts of the United States 
jurisdiction over all proceedings in personam, between 
such parties. As Marshall, C. J., said in Cohens v. 
Virginia,^ " if these be the parties, it is entirely unim- 
portant what may be the subject of controversy. Be 
it what it may, these parties have a constitutional right 
to come into the courts of the Union;" and as Field, 
J., said in Gaines v. Fuentes,^ "it rests entirely with 
Congress to determine at what time the power may be 
invoked, and upon what conditions."^ But that jurisdic- 
tion which is dependent on the character of the parties 
does not include proceedings in rem, or quasi in rem, 
such as questions of probate,*' or actions for divorce.^ 

^ Suprg. pp. 45, 46, The Genessee Chief v. Fitzhugh, 12 How. 443 ; The Daniel 
Ball, 10 Wall. 557; The Montello, 20 id. 430; Waring v. Clarke, 5 How. 441 ; 
Allen V. Newberry, 21 id. 244; Magaire v. Card, ibid. 248 ; The Belfast, 7 Wall. 
624; The Eagle, 8 id. 15; Yvetz v. Bull, 12 How. 466; The j\Ioses Taylor, 
4 Wall. 411 ; The Hine v. Trevor, ibid. 555 ; N. J. Navigation Co. v. Merchants' 
Bank, 6 How. 341 ; Hobart v Drogan, 10 Pet. 108 ; The St. Lawrence, 1 Bl. 522. 

2 McElrath v. U. S., 102 U. S. 426. 

2 6 Wheat. 378. * 92 U. S. 18. 

5 See also Payne v. Hook, 7 Wall. 425 ; Hyde v. .«tone, 20 How. 170, 175 ; 
Railway Co. v. Whitton, 13 Wall. 270, 287 ; Dennick v. R. R. Co., 103 U. S. 
11 ; Ex parte Boyd, 105 id. 647 ; Boom Co. v. Patterson, 98 id. 403. 

^ Fouvergnev. New Orleans, 18 How. 470. ' Barber v. Barber, 21 How. 582, 



198 THE JUDICIAL POWER. 

The phrases " controversies between two or more 
states . . . between citizens of the same state claim- 
ing lands under grants of different states " seem to be 
unambiguous. The cases of suits between states have 
been mainly controversies as to conflicting boun- 
daries.^ It has, however, been lield that as the United 
States "has no power to impose on a state officer, as such, 
any duty whatever, and compel him to perform it," a state 
cannot, by a suit against the governor of another state, 
compel the performance of a " duty" by an officer of that 
other state, for " there is no power delegated to the gen- 
eral government, either through the judicial dej)artment, 
or any other department, to use any coercive means to 
compel him." ^ It has also been held that since the 
adoption of the XI Amendment a court of the United 
States cannot entertain jurisdiction of a cause, in which 
one state seeks relief on behalf of its citizens, against 
another state in a matter in which the plaintiff state has 
no corporate interest, as, for instance, when the plaintiff 
state has assumed the collection of a debt due to one of 
its citizens by the defendant state.^ An Indian tribe 
within the United States being a " domestic dependent 
nation," and not a state, cannot bring suit against a state 
under this clause of the Constitution.^ But the other 
clauses of the constitutional provision, those giving jur- 
isdiction to the courts of the United States in "contro- 
versies . . . between a state and citizens of another 
state . . . and between a state or the citizens 
thereof, and foreign states, citizens, or subjects," 
were, at an early day in the history of the government, 

^ Rhode Island v. Massachusetts, 12 Pet. 724 ; Missouri v. Iowa, 7 How. 660 ; 
Florida v. Georgia, 17 id. 478 ; Alabama v. Georgia, 23 id. 505 ; Virginia v. 
West Virginia, 11 Wall. 39. 

^ Kentucky v. Dennisnn, 24 How. 66. 

^ New Hampshire v. Louisiana, 108 U. S. 76. 

* The Cherokee Nation v. Georgia, 5 Pet. 1. 



FEDERAL JURISDICTIOJST. 199 

tlie subject of much controversy. No one has ever 
doubted the jurisdiction in causes in which a state -^ 
was plaintiff, but the jurisdiction was earnestly con- 
tested in cases in which a state was defendant and 
citizens of other states were plaintiffs. In 1792 the 
Supreme Court of the United States, in Chisholm v. 
Georgia,^ the cause being an action of assumpsit 
brought by a citizen of South Carolina against the 
state of Georgia, sustained the original jurisdiction of 
the Supreme Court in suits by a citizen of one state 
against another state. In consequence of that judg- 
ment, and for the purpose of relieving the states from 
liability to suits to enforce the payment of their obliga- 
tions,^ the XI Article of the Amendments to the Con- 
stitution was adopted.^ As the courts of the United 
States are courts of limited jurisdiction, the record 
must show affirmatively that the cause is necessarily of 
federal cognizance, by reason of either the subject- 
matter of litigation,^ or the character of the parties.^ 
Tiie jurisdiction of the courts of the United States is, 
in its character, either civil or criminal, and, in its 
exercise, either exclusive of, or concurrent with, the 
jurisdiction of the courts of the states, and either 
original, or appellate. In causes of civil cognizance, 
where the federal court has acquired original jurisdic- 
tion under the Constitution and laws of the United 
States, it may protect rights and administer remedies 

1 Texas v. White, 7 Wall. 700. » Cohen v. Virginia, 6 Wheat. 406, 

2 2 Dall. 419. * Infra, sec. 100. 

s Lawler v. Walker, 14 How. 149 ; Mills v. Brown, 16 Pet. 525 ; R. E. v. 
Rock, 4 Wall. 177, 180 ; Osborn v. Bank of the United States, 9 Wheat. 738, 
823. , 

^ Dred Scott v. Sandford, 19 How. 393 ; Breitlianpt v. Bank of Georgia, 1 
Pet. 238 ; Godfrey v. Terry, 97 U. S 171 ; Hornthall i'. The Collector, 9 Wall. 
560 ; Grace v. American Ins. Co., 109 U. S. 278, 283 ; Robertson v. Cease, 97 
id. 646 ; Brown v. Keene, 8 Pet, 115 ; Bingham v. Cabot, 3 Dall. 382 ; Capron 
V. Van Noorden, 2 Cr. 126. 



200 THE JUDICIAL POWEE. 

not only under the Constitution, laws, and treaties of 
the United States, but also under the common law, as 
adopted by the state within which the court sits,^ the 
principles of equitable jurisprudence, " as distinguished 
and defined in that country from whence we derive our 
knowledge of those principles," ^ and the statutes of the 
state.^ In causes of criminal cognizance, the original 
jurisdiction of the federal courts is limited in two 
respects. In the first place, those courts cannot take 
cognizance of an act alleged to be criminal, which has 
not been declared to be such by an act of Congress.* 
In the second place. Congress cannot, under the Consti- 
tution, declare an act to be criminal, unless, as Field, 
J., said,^ that act has " some relation to the execution 
of a power of Congress, or to some matter within the 
jurisdiction of the United States." Thus, a murder 
committed on board a vessel of the navy of the United 
States, while at anchor in navigable waters within the 
jurisdiction of a state, is not cognizable in a court of the 
United States;*^ Congress cannot make it a misde- 
meanor to sell within the territory of a state illuminat- 
ing oil inflammable at a less than specified tempera- 
ture;^ while Congress may legislate with regard to 
bankruptcy, and may prohibit and declare to be punish- 
able the commission of a fraud in contemplation of 

1 Parsons v. Bedford, 3 Pet. 433 ; Wheaton v. Peters, 8 id. 591 ; Parrish v. 
Ellis, 16 id. 451 ; Ex parte Boll man and Swartwout, 4 Cr. 75. 

^ Robinson v. Campbell, 3 Wiieaton 222; Pennsylvania v. W. & B. Bridge 
Co., 13 How. 563; Livingston v Story, 9 Pet. 632; Holland i;. Challen, 110 
U. S. 15. 

3 Edwards v. Elliott, 21 Wall. 532 ; The Lottawanna, ibid. 558 ; C. & N. W. 
Ey. V. Whitton, 13 id. 270 ; Ex parte Gordon, 104 U. S. 515; Ex parte Ferry 
Co., ibid. 519. 

* U. S. V. Hudson, 7 Cr. 32 ; U S. v. Coolidge. 1 Wheat. 415 ; Bush v. Ken- 
tucky, 107 U. S. 110 ; Sed ef. Teoaessee i-. Davis, 100 U. S. 257. 

5 U. S. V. Fox, 95 U. S. 570. 

« U. S. Bevans, 3 Wheat. 336. 

^ United States v. DeWitt, 9 Wall. 41. 



THE EXCLUSIVE JURISDICTION. 201 

bankruptcy, it cannot constitute the obtaining of goods 
on false pretences without intent to defraud, but not in 
contemplation of bankrup)tcy, to be an offense against 
the United States;^ Congress cannot by statute pro- 
vide for the punishment of state election officers for 
wrongfully refusing to receive the vote of a qualified 
voter at an election, when that refusal is not based 
upon a discrimhiation against the voter on account of 
his race, colour, or previous condition of servitude.^ 
The appellate and supervisory jurisdiction of the 
courts of the United States over the courts of the states 
in causes of criminal cognizance is, as explained in 
Section 95, exercisable only in causes wherein there has 
been denied to the prisoner a right secured to him by 
the Constitution or laws of the United States. 

92. It is a principle of constitutional construction, as 
stated by Marshall, C. J., in Sturges v. Crov/ninshield,^ 
that " wherever the terms in which a power is granted 
to Congress, or the nature of the power require that it 
should be exercised exclusively by Congress, the sub- 
ject is as completely taken from the state legislatures as 
if they had been exjDressly forbidden to act on it."* In 
conformity with this principle, it has been decided in 
Martin v. Hunter's Lessee,^ and in The Moses Taylor,® 
that Congress has power to divest the courts of the 
states of jurisdiction over all subject-matters which are 
included within the constitutional grant of judicial 
power to the United States, or whose determination by 

^ United States v. Fox, 95 U. S. 670. 

2 U. S. V. Reese, 92 U. S. 214 ; U. S. v. Cruikshank, 92 U. S. 542. 

3 4 Wheat. 193. 

* See also Houston v. Moore, 5 "Wheat. 193 ; Gilman v. Philadelphia, 3 Wall. 
730. 

s 1 Wheat. 304. 

« Wall. 411. See also Cohen v. Virginia, 6 Wheat. 314, 315, 325; Slocum 
V. Mayberry, 2 id. 9 ; Gelston v. Hoyt, 3 id. 246 ; Waring v. Clarke, 5 How. 
451 ; Sed. cf. Story's Commentaries, ^ 1672, note 4. 



202 THE JUDICIAL POWEE. 

the judicial power of the United States is necessary to 
the exercise by Congress of its constitutional power of 
legislation, and where Congress has expressed its will 
that, as to any part cular subject-matter of federal cogni- 
zance the jurisdiction of the courts of the United 
States shall be exclusive, the courts of the states 
cannot take cognizance of such subject-matter.^ 

^ In Martin v. Hunter's Lessee, 1 Wheat. 334, Story, J., referring to the 
consiitutional grant of judicial power to the United States, said : " the first 
class inchides cases arising under the Constitution, laws, and treaties of the 
United .States ; cases affecting ambassadors, other public ministers, and con- 
suls, and cases of admiralty and maritime jurisdiction. In this class the ex- 
pression is, that the judicial power shall extend to a// cases; but in the subse- 
quent part of the clause which embraces all the other cases of national cogni- 
zance, and forms the second class, the word 'all' is dropped seemingly ex 
indmtria. Here the judicial authority is to extend to controversies, not to all 
controversies, to wliich the United States shall be a party, etc. From this 
difference of phraseology, perhaps a difference of constitutional intention may, 
with propriety, be inferred. It is hardly to be presumed that the variation in 
the language could have been accidental. It must have been the result of 
some determinate reason ; and it is not very difficult to find a reason suificient 
to support the apparent change of intention. In respect to the first class, it 
may well have been the intention of the framers of the Constitution impera- 
tively to extend the judicial power either in an original or appellate form to 
all cases; and in the latter class to leave it to Congress to qualify the jurisdic- 
tion, original or appellate, in such manner as public policy might dictate. 
The vital importance of all the cases enumerated in the first class to the 
national sovereignty might warrant such a distinction. In the first place, as 
to cases arising under the Constitution, laws, and treaties of the United States. 
Here the state courts could not ordinarily possess a direct jurisdiction. The 
jurisdiction over such cases could not exist in the state courts previous to the 
adoption of the Constitution, and it could not afterwards be directly conferred 
on them ; for the Constitution expressly requires the judicial power to be vested 
in courts ordained and established by the United States. This class of cases 
would embrace civil as well as criminal jurisdiction, and affect not only our 
internal policy, but our foreign relations. It would, therefore, be perilous to 
restrain it in any manner whatsoever, inasmuch as it might hazard the na- 
tional safety. The same remarks may be urged as to cases affecting ambassa- 
dors, otlier public ministers, and consuls, who are emphatically placed under 
the guardianship of the law of nations ; and as to cases of admiralty and mari- 
time jurisdiction, the admiralty jurisdiction embraces all questions of prize 
and salvage, in the correct adjudication of which foreign nations are deeply 
interested; it embraces also maritime torts, contracts, and offenses, in 
whicTi the principles of the law and comity of nations often form an essential 
inquiry. All these cases, then, enter into the national policy, affect the 



THE EXCLUSIVE JURISpiCTION. 203 

Of course, the Constitution, having granted the 
power, and not having commanded Congress to exercise 

national rights, and may compromise the national sovereignty. The original, 
or appellate, jurisdiction ought not, therefore, to be restrained, but should be 
commensurate with the mischiefs intended to be remedied, and, of course, 
should extend to all cases whatsoever. A different policy might well be 
adopted with reference to the second class of cases; for, although it might be 
fit that the judicial power should extend to all controversies to which the 
United States should be a party, yet this power might not have been impera- 
tively given, lest it should imply a right to take cognizance of original suits 
brought against the United States as defendants in their own courts. Jt 
might not have been deemed proper to submit the sovereignty of the United 
States, against their own will, to judicial cognizance, either to enforce riglits 
or to prevent wrongs ; and as to the other cases of the second class, they 
might well be left to be exercised under the exceptions and regulations which 
Congress might, in their wisdom, choose to apply. It is also worthy of re- 
mark, that Congress seems, in a good degree, in tlie establishment of the 
present judicial system, to have adopted this distinction. In the first class of 
cases, the jurisdiction is not limited except by the subject-matter; in the 
second, it is made materially to depend upon the value in controversy. We 
do not, however, profess to place any implicit reliance upon the distinction 
which has here been stated and endeavoured to be illustrated. . . . At all 
events, whether the one construction or the other prevail, it is manifest that 
the judicial power of the United States is unavoidably, in some cases, exclu- 
sive of all state authority, and in all others, may be made so at the election of 
Congress. No part of the criminal jurisdiction of the United States can, con- 
sistently with the Constitution, be delegated to state tribunals. The admiralty 
and maritime jurisdiction is of the same exclusive cognizance ; and it can only 
be in those cases where, previous to the Constitution, state tribunals possessed 
jurisdiction independent of national authority, that they can now constitu- 
tionally exercise a concurrent jurisdiction. Congress, throughout the judicial 
act, and particularly in the 9th, 11th, and 13th sections, have legislated upon 
the supposition that in all the cases to which the judicial powers of the United 
States extended, they might rightfully vest exclusive jurisdiction in their own 
courts." In The Moses Taylor [4 Wall. 411], Field, J., in the judgment of 
the court, quoted the constitutional grant of judicial power to the United 
States, and said [p. 428], "how far this judicial power is exclusive, or may, 
by the legislation of Congress, be made exclusive, in the courts of the United 
States, has been much discussed, though there has been no direct adjudication 
upon the point ;" and after referring to the judgment of Story, J., in Martin 
V. Hunter's Lessee, he added [p. 429], "we agree fully with this conclusion. 
The legislation of Congress has proceeded upon this supposition. The Ju- 
diciary Act of 1789, in its distribution of jurisdiction to the several federal 
courts, recognizes and is framed upon the theory that, in all cases, to which 
the judicial power of the United States extends. Congress may rightfully vest 
exclusive jurisdiction in the federal courts. . . . The constitutionality of 
these provisions cannot be seriously questioned and is of frequent recognition 



204 THE JUDICIAL POWER. 

it, it is for Congress to determine when and to what 
extent it will exercise it. Therefore, the jurisdiction of 
the courts of the United States within the limits im- 
posed by the Constitution is either exclusive of, or con- 
current with, that of the courts of the states, as Con- 
gress may, from time to time, determine.-^ As the 
law now is, the jurisdiction of the courts of the United 
States is exclusive of that of the states in cases of 
crimes and offenses cognizable under the authority of 
the United States ; in suits for penalties and forfeitures 
incurred under the laws of the United States ; in civil 
causes of admiralty and maritime jurisdiction, saving 
to suitors in all cases the right of a common law 
remedy, where the common law is competent to give it ; 
in seizures under the laws of the United States on land 
or on waters not within admiralty and maritime juris- 
diction ; in cases arising under the patent right or copy- 
rio'ht laws of the United States ; in all matters and 
proceedings in bankruptcy ; in all controversies of a civil 
nature, where a state is a party, except between a state 
and its citizens, or between a state and citizens of other 
states, or aliens ; and in all suits or proceedings against 
ambassadors, or other public ministers, or their domes- 
tics, or domestic servants, or against consuls or vice- 
consuls.^ 

93. The original jurisdiction of the courts of the 
United States is exercised in some cases by the Supreme 
Court, and, in other cases, by the inferior courts. As 

by both state and federal courts." In Claflin v. Houseman, 93 U. S. 136, Brad- 
ley, J., said, the general principle is, " that, where jurisdiction may be con- 
ferred on the United States courts, it may be made exclusive where not so by 
the Constitution itself ; but, if exclusive jurisdiction be neither express nor 
implied, the state courts have concurrent jurisdiction whenever, by their own 
Constitution, they are competent to take it." 

1 Martin v. Hunter's Lessee, 1 Wheat. 304, 331, 333 ; The Moses Taylor, 4 
Wall. 411, 429. 

2 Kev. Stat. Sec. 711. 



OEIGINAL JUEISDICTION. 205 

Johnson, J., said in United States v. Hudson/ " only 
the Supreme Court possesses jurisdiction derived im- 
mediately from the Constitution, and of which the legis- 
lative power cannot deprive it. All other courts 
created by the general government possess no jurisdic- 
tion but what is given them by the power that creates 
them, and can be vested with none but what the 
230wer ceded to the general government will authorize 
them to confer." 

The original jurisdiction of the Supreme Court is limi- 
ted by the Constitution to " cases affecting ambassadors, 
other public ministers, and consuls, and those in which a 
state shall be a party." Congress cannot confer upon the 
Supreme Court any original jurisdiction other than that 
so conferred by the express terms of the Constitution.^ 
Whether or not Congress can authorize other courts of 
the United States to exercise concurrent original juris- 
diction in the cases, original jurisdiction over which is 
vested by the Constitution in the Supreme Court, was 
for a long time an unsettled question. In U. S. v. Ov- 
tega,^ the question was raised, but not decided, but in 
Bors V. Preston,* it was determined, that the Congress 
might confer a concurrent original jurisdiction upon the 
circuit courts of the United States in actions against 
consuls of foreign states.^ The original jurisdiction of 
the courts of the United States concurrent with that of 
the state courts, is regulated by the acts of Congress.'^ 

1 7 Cr. 32. 3 11 Wheat. 467. 

2 Marbury v. Madison, 1 Cr. 137. * 111 U. S. 252. 

5 Eev. Stat., sec, 687. See, also, Ames v. Kansas, 111 U. S. 449. Sed. cf. 
Curtis's Jurisdiction of the Courts of the U. S., p. 10. 

6 Eev. Stat. U. S., Sections 563,629, and 711. The Act of 3 March, 1887, 
declares that " the Circuit Courts of the United States shall have original 
cognizance, concurrent with the courts of the several states, of all suits of a 
civil nature, at common law or in equity, where the matter in dispute exceeds, 
exclusive of interest and costs, the sum or value of $2,000, and arising under 
the Constitution or laws of the United States, or treaties made, or which shall 



206 THE JUDICIAL POWER. 

94. The removal of civil causes from tlie courts of 
the states to the courts of the United States is now 
regulated by the Act of 3 March, 1887.^ 

be made, under their authority, or in which controversary the United States are 
plaintiffs or petitioners, or in which there shall be a controversary between citi- 
zens of different states, in which the matter in dispute exceeds, exclusive of 
interest and costs, the sum or value aforesaid, or a controversary between citi- 
zens of the same state, claiming land under grants from different states, or a 
controversary between citizens of a state and foreign states, citizens, or subjects 
in which the matter in dispute exceeds, exclusive of interest and costs, the 
sum or value aforesaid, . . . and no civil suit shall be brought before either 
of said courts against any person by any original process of proceeding in any 
other district than that whereof he is an inhabitant ; but where the jurisdic- 
tion is founded only on the fact that the action is between citizens of differ- 
ent states, suit shall be brought only in the district of the residence of either 
the plaintiff or the defendant ; nor shall any Circuit or District Court have cog- 
nizance of any suit except upon foreign bills of exchange, to recover the con- 
tents of any promissory note or other chose in action in favour of any assignee, 
or of any subsequent holder of such instrument be payable to beai-er, and 
be not made by any corporation, unless such suit might have been prosecu- 
ted in such court to recover the said contents if no assignment or transfer had 
been made." Section 3 of the act subjects to liability to suit receivers ap- 
pointed by any court of the United States. Section 4 of the act declares na- 
tional banking associations to be, for purposes of jurisdiction, citizens of the 
states in which they are located, and provides that the federal courts shall not 
have, in cases brought by such associations, any ''jurisdiction other than such 
as they would have in cases between individual citizens of the same state," 
saving the federal jurisdiction ''in cases commenced by the United States, 
or by any officer thereof, or cases for winding up the affairs of any such bank." 
' ^ That act declares, " Sec. 2, that any suit of a civil nature, at law or in 
equity, arising under the Constitution or laws of the United Staes, or treaties 
made, or which shall be made, under their authority, of which the Circuit 
Courts of the United States are given original jurisdiction by tlie preceding 
section, which may now be pending, or which may hereafter be brought, in 
any state court, may be removed by the defendant or defendants therein to 
the Circuit Court of the United States for the proper district any other suit 
of a civil nature, at law or in equity, of which the Circuit Courts of the United 
States are given jurisdiction by the preceding section, and which are now 
pending, or which may hereafter be brought, in any state court, may be re- 
moved into the Circuit Court of the United States for the proper district, by 
the defendant or defendants therein being non-residents of that state ; and 
when in any suit mentioned in this section there shall be a controversy which 
is wholly between citizens of different states, and which can be fully deter- 
mined as between them, then either one or more of the defendants actually in- 
terested in such controversy may remove said suit into the Circuit Court of 
the United States for the proper district. And where a suit is now pending, 
or may be hereafter brought, in any state court, in which there is a contro- 



COK^CURRENT JURISDICTION. 207 

versy between a citizen of the state in which the suit is brought and a citizen 
of another state, any defendant, being such citizen of another state, may re- 
move such suit into the Circuit Court of the United States for the proper 
district, at any time before the trial thereof, when it shall be made to appear 
to said Circuit Court that from prejudice or local influence he will not be able 
to obtain justice in such state court, or in any other state court to which the 
said defendant may, under the laws of the state, have the right, on account of 
such prejudice or local influence, to remove said cause : provided, that if it 
further appear that said suit can be fully and justly determined as to the other 
defendants in the state court, without being affected by such prejudice or local 
influence, and that no party to the suit will be prejudiced by a separation of 
the parties, said Circuit Court may direct the suit to be remanded, so far as 
relates to such other defendants, to the state court, to be proceeded with 
therein. 'At any time before the trial of any suit which is now pending in 
any Circuit Court, or may hereafter be entered therein, and which has been 
removed to said court from a state court on the affidavit of any party plaintiff, 
that he had reason to believe and did believe that, from prejudice or local 
influence, lie was unable to obtain justice in said state court, the Circuit Court 
shall, on application of the 6ther party, examine into the truth of said 
affidavit and the grounds thereof, and, unless it shall appear to the satisfaction 
of said court that said party will not be able to obtain justice in such state 
court, it shall cause the same to be remanded thereto.' Whenever any cause 
shall be removed from any state court into any Circuit Court of the United 
States, and the Circuit Court shall decide that the cause was improperly re- 
moved, and order the same to be remanded to the state court from whence it 
came, such remand shall be immediately carried into execution, and no appeal 
or writ of error from the decision of the Circuit Court so remanding such cause 
shall be allowed." 

" Sec. 3. That whenever any party entitled to remove any suit mentioned 
in the next preceding section, except in such cases as are provided for in the 
last clause of said section, may desire to remove such suit from a state court 
to the Circuit Court of the United States, he may make and file a petition in 
such suit in such state court at the time, or any time before tlie defendant is 
required by the laws of the state or the rule of the state court in which such 
suit is brought, to answer or plead to the declaration or complaint of the 
plaintiff, for the removal of such suit intf) the Circuit Court to be held in the 
district where such suit is pending, and shall make and file therewith a bond, 
with good and sufficient surety, for his or their entering in such Circuit Court, 
on the first day of its then next session, a copy of the record in such suit, and 
for paying all costs that may be awarded by the said Circuit Court if said 
court shall hold that such suit was wrongfully or improperly removed theieto, 
and also for their appearing and entering special bail in such suit if special 
bail was originally requisite therein. It shall then be the duty of tlie state 
court to accept said petition and bond and proceed no further in such suit, and 
the said copy being entered as aforesaid in said Circuit Court of the United 
States, the cause shall then proceed in the same manner as if it had been ori- 
ginally commenced in the said Circuit Court ; and if, in any action com- 
menced in a state court, the title of land be concerned, and the parties are 
citizens of the same state, and the matter in dispute exceed the sum or value 



208 THE JUDICIAL POWER. 

The removal of causes of criminal cognizance is like- 
wise regulated by statute.^ 

95. As the Constitution has declared, that in all 
cases, other than those in which original jurisdiction 
has been by its terms vested in the Supreme Court, 
that court "shall have appellate jurisdiction, both as to 
law and fact, with such exceptions and under such 
regulations as the Congress shall make," Congress may 
define and limit the appellate jurisdiction of the 
Supreme Court,^ but the Supreme Court cannot be 

of $2,000, exclusive of interest and costs, the sum or value being made to 
appear, one or more of the plaintiffs or defendants, before the trial, may state 
to the court, and make affidavit if the court require it, that he or they 
claim and shall rely upon a right or title to the land under a grant from a state, 
and produce the original grant, or an exemplitication of it, except where the 
loss of public records shall put it out of his or their power, and shall move 
that any one or more of the adverse party inform the court whether he or they 
claim a right or title to the land under a grant from some other state, the 
party or parties so required shall give such information, or otherwise not be 
allowed to plead such grant, or give it in evidence upon tlie trial ; and if he 
or they inform that he or they do claim under such grant, any one or more 
of the party moving for such information may then, on petition and bond, as 
hereinbefore mentioned in this act, remove the cause for trial to the Circuit 
Court of the United States next to be holden in such district; and any one of 
either party removing the cause shall not be allowed to plead or give evidence 
of any other title than that by him or them stated as aforesaid as the ground 
of his or their claim." The Act of 1887 is, indeed, a legal curiosity. 

1 Kev. Stat., sees. 641 and 642. The Act of 3 March, 1887, declares : Sec. 5. 
That nothing in this act shall be held, deemed or construed to repeal or 
affect any jurisdiction or right mentioned either in sections 641, or in 642, or 
in 643, or in 722, or in Title 24 of tl^ Revised Statutes of the United States, 
or mentioned in Section 8 of the act of Congress of which this act is an 
amendment, or in the act of Congress, approved March 1, 1875, entitled 
"An act to protect all citizens in their civil or legal rights." Sec. 6. That the 
last paragraph of section 5 of the act of Congress, approved March 3, 1875, 
entitled "An act to determine the jurisdiction of Circuit Courts of the United 
States, and to regulate the removal of causes from state courts, and for other 
purposes," and section 640 of the Revised Statutes, and all laws and parts of laws 
in conflict with the provisions of this act, be and the same are hereby repealed. 
Provided, That this act shall not affect the jurisdiction over or disposition of 
any suit removed from the court of any state, or suit commenced in any court 
of the United States, before the passage hereof, except as otherw;ise expressly 
provided in this act. 

2 Wiscart v. Dauchy, 3 Dall. 321 ; Durosseau v. U. S., 6 Cr. 307, 314; The 
Francis Wright, 105 U. S. 381. 



SUPERVISORY JURISDICTIOjS-. 209 

required to review the actions of officers of the United 
States under legislative or executive references,^ In 
the exercise of its appellate jurisdiction the Supreme 
Court of the United States may review the final judg- 
ments and decrees of the inferior courts of the United 
States under the restrictions stated in the acts of Con- 
gress,^ and it may review the final judgments or decrees 
of the courts of last resort of the states in causes either 
civil or criminal, " where is drawn in question the 
validity of a statute of, or an authority exercised under, 
any state, on the ground of their being repugnant to 
the Constitution, treaties, or laws of the United States, 
and the decision is in favour of their validity; or where 
any title, right, privilege, or immunity is claimed under 
the Constitution, or any treaty or statute of, or commis- 
sion held or authority exercised under, the United 
States, and the decision is against the title, right, priv- 
ilege, or immunity specially set up or claimed by either 
party, under such Constitution, treaty, statute, commis- 
sion, or authority."^ The courts of the United States 
also exercise a supervisory jurisdiction over the courts 
of the states by a removal from a court of a state to a 
federal court of a cause, either civil or criminal, de- 
pending but not yet finally adjudicated in the state 
court,* or by the issue of a writ of habeas corpus in cases 
of a restraint of personal liberty under process of a 
court of a state, void by reason of the ofiense with 

1 Haybnrn's Case, 2 Dall. 409 ; U. S. v. Ferrera, 13 How. 40 ; Hunt v. 
Pallas, 4 How, 589 ; McNulty v. Batty. 10 id. 72 ; Gordon v. U. S., 2 Wall, 
561, 

^ Rev. Stat. Sec. 690 et seq. 

^ Rev. Stat. 709. See also Cohens v. Virginia, 6 Wheat. 264 ; Worcester v. 
Georgia, 6 Pet. 515 ; Twitchell v. Pennsylvania, 7 Wall. 321 ; Spies v. Illinois, 
123 U. S. 131. 

* West V. Aurora City, 6 Wall. 139 ; Ames v. Kansas, 111 U. S. 449 ; Phila- 
delphia V. The Collector, 5 Wall. 720 ; The Mayor v. Cooper, 6 id. 247 Ten- 
nessee V. Davis, 100 U. S. 257 ; The Removal Cases, ibid. 457. 
14 



210 THE JUDICIAL POWER. 

whicli the prisoner is cliarged being a matter of federal, 
and not of state, cognizance, or by reason of the re- 
straint of a prisoner in violation of the Constitution, 
or of any treaty, or law of the United States.^ The 
right of appeal, or of removal, or to the writ of 
habeas corpus is in any case dependent, not only on the 
federal character of the question involved, or the right 
of the party to sue in the federal court, but also on the 
terms of the act of Congress authorizing the exercise 
by the court of the United States of its supervisory 
jurisdiction in the particular case. The Constitution 
does not expressly authorize the removal of causes of 
federal cognizance from the courts of the states to the 
courts of the United States before final judgment, nor 
does it expressly authorize the review of such causes in 
the Supreme Court of the United States after the entry 
of final judgment in a court of a state, nor does it ex- 
pressly authorize the release by a court of the United 
States after a hearing on habeas corpus of a prisoner 
indicted in a state court for doing that which under the 
Constitution and laws of the United States he may 
rightfully do, but the right of removal, the right of 
appeal, and the right to a discharge after hearing on 
habeas corpus, alike result from the constitutional decla- 

^ Harlan, J., said, in Ex parte Eoyall, 117 U. S. 252, if "a person is in cus- 
tody, under process from a state court of original jurisdiction, for an alleged 
offense against the laws of such state, and it is claimed that he is restrained 
of his liberty in violation of the Constitution of the United States, the 
Circuit Court [of the U. S.] has a discretion, whether it will discharge him 
upon a habeas corpus in advance of his trial in the court in which he is in- 
dicted ; that discretion, however, to be subordinated to any special circum- 
stance requiring immediate action. When the state court shall have finally 
acted upon the case, the Circuit Court has still a discretion whether, under 
all the circumstances as then existing, the accused, if convicted, shall be put to 
his writ of error from the highest court of the state, or whether it will pro- 
ceed by writ of habeas corpus, summarily to determine whether the petitioner 
is restrained of his liberty in violation of the Constitution of the United 
States." See also Ex parte Fonda, 117 U. S. 516. Eev. Stat. Sec. 751, 
et seq. 



A JUDICIAL CASE. 211 

ration of the supremacy of the Constitution and laws of 
the United States. 

96. Whatever be the form in which the jurisdiction 
of the courts of the United States is invoked, it is 
essential to the exercise of the jurisdiction that there 
should be a " case " before the court, that is, a subject- 
matter of litigation contested by competent parties.-^ 
It is also essential that the question for decision be 
judicial in character, for the courts cannot decide politi- 
cal questions, such as whether or not the people of a 
state have altered their form of government by abolish- 
ing an old government and establishing a new one in its 
place,^ nor whether or not, in a foreign country, a new 

1 In Osborn v. The Bank of the United States, 9 Wheat. 818, Marshall, C. 
J., said, "the legislative, executive, and judicial powers of every well con- 
structed government, are co-extensive with each other, that is, they are poten- 
tially co-extensive. The executive department may constitutionally execute 
«very law which the legislature may constitutionally make, and the judicial 
department may receive from the legislature the power of construing every 
such law. All governments which are not extremely defective in their 
organization, must possess within themselves the means of expounding, as 
■well as enforcing, their own laws. If we examine the Constitution of the 
United States, we find that its framers kept this great political principle in 
view. The II Article vests the whole executive power in the President, and 
the III Article declares, ' that the judicial power shall extend to all cases in 
law and equity arising under this Constitution, the laws of the United States, 
and treaties made, or which shall be made, under their authority.' This 
clause enables the judicial department to receive jurisdiction to the full ex- 
tent of the Constitution, laws, and treaties of the United States, when any 
question respecting them shall assume such a form that the judicial power is 
capable of acting on it. That power is capable of acting only when the sub- 
ject is submitted to it by a party who asserts his rights in the form prescribed 
by law. It then becomes a case, and the Constitution declares, that the 
judicial power shall extend to all cases arising under the Constitution, laws, 
and treaties of the United States." In Cohens v. Virginia, 6 Wheat. 379, 
Marshall, C. J., said, '' a case in law or equity consists of the right of one 
party, as well as of the other, and may be truly said to arise under the Con- 
stitution or a law of the United States whenever its correct decision depends 
on the construction of either. Congress seems to have intended to give its 
own construction of this part of the Constitution in the 25th Section of the 
Judiciary Act ; and we perceive no reason to depart from that construc- 
tion." 

2 Luther v. Borden, 7 How. 147. ' 



212 THE JUDICIAL POWEE. 

government has been established,^ nor can the courts by 
injunction restrain a state from the forcible exercise of 
leo-islative power over an Indian tribe " asserting their 
independence, the right to which the state denies,"^ nor 
enjoin the executive department of the government of 
the United States from carrying into effect acts of 
Congress alleged to be unconstitutional.^ Such ques- 
tions can only be decided by the political power, "and 
when that power has decided, the courts are bound to 
take notice of its decision and to follow it."^ Upon 
this principle, the recognitiou by Congress and the 
executive of the state governments of the then lately 
rebellious states as reconstructed after the suppression 
of the rebellion was held to be binding upon the judi- 
cial department of the government.^ But the courts 
may compel the performance of a ministerial and non- 
discretionary duty by an executive officer, as, for in- 
stance, the delivery of a signed and sealed commission 
to an officer who has been appointed, nominated, and 
confirmed,^ or the crediting to a government creditor of 
a sum of money found by the Treasury to be due under 
the express terms of an act of Congress.' 

1 Eose V. Himely, 4 Cr. 272 ; Hoyt v. Gelston, 3 Wheat. 324 ; Kennett v. 
Chambers, 14 How. 38. 

2 The Cherokee Nation v. Georgia, 5 Pet. 120. 

^ Mississippi v. Johnson, 4 Wall. 475 ; Georgia v. Stanton, 6 id. 50. 
* Luther v. Borden, 7 How. 147. 

5 Texas v. White, 7 Wall. 700, 701. 

6 Marbury v. Madison, 1 Cr. 137, 

^ Kendall, Postmaster General, v. Stockton, 12 Pet. 627. 

[In the courts of the United States, laws of foreign countries may be proved 
as facts, C. & A. E.^ E. v. W. F. Co., 119 U. S. 615, 622 ; Talbot v. Seeman, 1 Cr. 
1 ; Strother v. Lucas, 6 Pet. 763 ; Armstrong v. Lear, 8 id. 52 ; Church v. 
Hubbart, 2 Cr. 187, by the official publications thereof, satisfactorily certified, 
Ennis v. Smith, 14 How. 400, or by written copies thereof attested by the oath 
of an- United States Consul, Church v. Hubbart, 2 Cr. 187. Unwritten 
foreign laws may be proved by the testimony of experts, Ennis v. Smith, 14 
How. 400; Livingston v. M. Ins. Co., 6 Cr. 274; Pierce v. Indseth, 106 U. S. 
646. The courts of the United States take notice, without proof, of the laws 



IMPEACHMENTS. 213 

97. The judicial jurisdiction of the United States, 
except as regards offenses of soldiers and sailors against 
the Articles of War, and crimes punishable by impeach- 
ment, can only be exercised by courts duly constituted 
under the Constitution and the laws. Congress, there- 
fore, cannot invest military commissions with juris- 
diction to try, convict, or sentence for any oifense, a 
citizen not being a resident of a state in rebellion, nor 
a prisoner of war, nor in the military or naval service 
of the United States.^ Courts martial may exercise 
judicial jurisdiction with regard to offenses against the 
Articles of War by soldiers, sailors, and militiamen when 
called out for service.^ 

98. That which may be termed the extraordinary 
judicial power of the United States is exercised only in 
the trial of impeachments. The relevant provisions of 
the Constitution are that, "the House of E-epresen- 
tatives shall . . . have the sole power of impeach- 
ment ;" ^ " the Senate shall have the sole power to try 
all impeachments. When sitting for that pur23ose, they 
shall be on oath or affirmation. When the President 
of the United States is tried, the Chief Justice shall 
preside ; and no person shall be convicted without the 
concurrence of two-thirds of the members present. 
Judgment in cases of impeachment shall not extend 

of the several states, C. & A. E. E. v. W. F. Co., 119 U. S. 615, 622 ; Owings 
V. Hull, 9 Pet. 607, and of the laws governing territory subsequently acquired 
by the United States, U. S. v. Perot, 98 U. S. 430; Fremont v. U. S., 17 How. 
542, 557. But the Supreme Court of the United States, in the exercise of its 
appellate jurisdiction, does not take judicial notice of the laws of foreign 
countries, nor of the laws of the several states of the United States, if such 
laws have not been found as facts in the courts of the first instance, Hanley v. 
Donaghue, 116 U. S. 1 ; C. & A. E. E. v. W. F. Co., 119 U. S. 615, 623.] 
^ Ex parte Milligan, 4 Wall. 2. 

2 Wise V. Withers, 3 Cr. 331 ; Houston v. Moore, 5 Wheat. 1 ; Martin v. 
Mott, 12 id. 19 ; Dynes v. Hoover, 20 How. 65 ; Ex parte Mason, 105 U S. 
696; Keyes v. U. S., 109 id. 336 ; Wales v. Whitney, 114 id. 564. 

3 Art. I, Sec. 2. 



214 THE JUDICIAL POWEE. 

further than to removal from office and disqualification 
to hold and enjoy any office of honour, trust, or profit, 
under the United States ; but the party convicted shall, 
nevertheless, be liable and subject to indictment, trial, 
judgment, and punishment, according to law."-^ "The 
President, Vice-President, and all civil officers of the 
United States, shall be removed from office on impeach- 
ment for, and conviction of, treason, bribery, or other 
high crimes and misdemeanors,." ^ " The President 
shall . . . have power to grant reprieves and pardons 
for offenses against the United States except in cases of 
impeachment." ^ " The trial of all crimes except in 
cases of impeachment shall be by jury." ^ " No bill of 
attainder or ex post facto law shall be passed." ^ The 
Supreme Court of the United States has never decided 
any question as to impeachment, but a consideration of 
the constitutional provisions shows clearly that, under 
them, the House of Representatives is the prosecutor ; 
any civil officer of the United States may be the de- 
fendant ; the Senate of the United States is the court, 
its members being first sworn or affirmed, the Chief 
Justice of the Supreme Court of the United States pre- 
siding in the case of a trial of the President, and a con- 
currence of two-thirds of the members present being 
necessary to a conviction; the offences for which an 
impeached officer may be tried being " treason, bribery, 
or other high crimes and misdemeanors," as defined by 
laws of the United States enacted before the com- 
mission of the offense ; the punishment extending only 
" to removal from office and disqualification to hold and 
enjoy any office of honour, trust, or profit under the 
United States," but without prejudice to indictmentj. 

1 Art. I, Sec. 3. ' Art. II, Sec. 4. 

3 Art. II, Sec. 2. * Art. Ill, Sec. 2. 

6 Art. I, Sec. 9. 



CONSTITUTIOIS^AL CONSTEUCTION. 215 

trial, and conviction at law for the same offense ; and a 
presidential pardon not being pleadable in bar of the 
impeachment nor .efficacious in satisfaction of a con- 
viction after impeachment, or in mitigation of the 
punishment. 

99. The most important function of the Supreme 
Court of the United States is that of construing the 
Constitution authoritatively and finally, so far as re- 
gards subject-matters of judicial determination. The 
rules, which are applied by the court in the construc- 
tion of the Constitution, are few and simple. (1). The 
construction is neither lax nor rigorous, but such as to 
effectuate the purpose of the instrument as "an estab- 
lishment of a frame of government and a declaration 
of that government's fundamental principles intended 
to endure for ages and to be adapted to the various 
crises of human affairs."^ (2). The antecedent history 
of the country and the state of the public affairs at the 
time of the adoption of the Constitution are considered, 
in order that the old law, the mischief, and the remedy 
may have their relative weight.^ (3). A contempo- 
raneous legislative exposition acquiesced in for a long 
term of years fixes the construction.^ (4). The words 
are read in their natural sense,^ departing from and 
varying by construction the natural meaning of the 
words only where different clauses of the instrument 
bear upon each other and would conflict, unless the 
words were construed otherwise than by their nat- 
ural and common import.^ (5). An exception from a 

1 Juilliard v. Greenman, 110 U. S. 421; Gibbons v. Ogden, 9 Wheat. 1 ; 
Martin v. Hunter's Lessee, 1 Wheat. 304. 

^ Ehode Island v. Massachusetts, 12 Pet. 657. 

'^ Stuart V. Laird, 1 Cr. 299 ; Brisco v. The Bank of the Commonwealth of 
Kentucky, 11 Pet. 317 ; Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727. 

* Gibbons v. Ogden, 9 Wheat. 1. 

^ Sturges V. Crowninshield, 4 Wheat. 122. 



216 THE JUDICIAL POWEE. 

power, which is granted in express terms, marks the 
extent of the power and shows that the power neces- 
sarily includes other cases which come within the terms 
of the grant and which might have been, but were not, 
specifically excepted.^ (6), The Federalist is not, o 
course, of binding authority upon the Supreme Court 
with regard to the judicial construction of the Constitu- 
tion, but as Marshall, C, J., said in Cohens v. Virginia,^ 
the " opinion of the Federalist has always been consid- 
ered as of great authority. It is a complete commen- 
tary on our Constitution, and is appealed to by all 
parties in the questions to which that instrument has 
given birth. Its intrinsic merit entitles it to this high 
rank, and the part two of its authors ]3erformed in 
framing the Constitution put it very much in tbeir 
power to explain the views with which it was framed." 
(7). The reported proceedings of the convention which 
framed the Constitution, and of the several state con- 
ventions which ratified it, though frequently referred to 
in the discussions of questions of constitutional construc- 
tion, are not of binding authority. The views expressed 
in the debates are merely the views of the individual 
s]3eakers, and do not necessarily express the view of the 
subject which induced the federal convention to insert 
the particular provision in the Constitution as framed 
by them, or which led the convention of any, one state 
to ratify the Constitution. The votes of the convention 
on the details of the Constitution are of no greater im- 
portance, for an affirmative vote approving a particular 
section of the Constitution, throws no light on the mean- 
ing of the words of the section ; and a negative vote 
rejecting a proposed constitutional provision may with 

1 Gibbons v. Ogden, 9 Wheat. 1 ; Rhode Islands. Massachusetts, 12 Pet. 657 ; 
Brown v. Maryland, 12 Wheat. 438. 
•" 6 Wheat. 418. 



THE XI AMENDMENT. 217 

equal propriety be regarded as an expression of opinion 
to the effect that the proposed provision is unnecessary 
because adequately supplied by other provisions of the 
Constitution, or as a refusal to adopt the particular 
provision because in the opinion of the convention such 
a provision ought not to be inserted in the Constitution. 
It must be remembered that the Constitution derives its 
whole force and authority from its ratification by the 
people/ and whenever it becomes necessary to determine 
the meaning of any clause in the Constitution, the real 
question for decision is not, what did the federal con- 
vention, or any member thereof, understand that clause 
to mean when that convention /ramed the Constitution, 
nor what did the members of any particular state 
convention understand that clause to mean when their 
convention ratified the Constitution, but what did that 
clause really mean as ratified by all the conventions, 
and that meaning can only be determined by the 
application of the established rules of judicial construc- 
tion.^ 

100. The Supreme Court having in Chisholm v. 
Georgia ^ affirmed its original jurisdiction in actions 
brought by citizens of one state against another state, in 
1797 the XI Amendment was adopted, declaring, that 
" the judicial power of the United States shall not be con- 
strued to extend to any suit in law or equity commenced 
or prosecuted against one of the United States by citi- 
zens of another state, or by citizens or subjects of any 
foreign states." That amendment having taken effect 
on 8 January, 1798, in that year the Supreme Court 
decided in Hollingsworth v. Virginia,^ that the amend- 

1 McCulloch V. Maryland, 4 Wheat. 316, 404. 

^ The view as stated in the text has been forcibly put by Mr. McMurtrie in 
his " Observations on Mr. George Bancroft's Plea for the Constitution," p. 8, 
et seq. 

3 2 Dall. 419. * 3 Dall. 378. 



218 THE JUDICIAL POWER. 

ment barred any further proceedings in cases tliCD 
depending in the courts of the United States in 
which a citizen of one state was the plaintiff, and 
another state was the defendant. In Osborne v. The 
Bank of U. S.,^ Marshall, C. J., said: "The XI 
Amendment ... is of necessity limited to those 
suits in which a state is a party to the record," but he 
added,^ " the state not being a party to the record, and 
the court having jurisdiction over those who are parties 
on the record, the true question is not one of jurisdic- 
tion, but whether in the exercise of its jurisdiction, the 
court ought to make a decree against the defendants ; 
whether they are to be considered as having a real in- 
terest, or as being only nominal defendants." On the 
other hand he said,^ " this suit is not against the state 
of Ohio within the view of the Constitution, the state 
being no party on the record." The jurisdictional 
question in the cause was as to the power of the court 
to take cognizance of a suit in equity brought by the 
Bank of the United States against the auditor of the 
state of Ohio to enjoin the collection of a tax on the 
business of the bank imposed by a statute of Ohio, and 
to recover a sum of money wrongfully taken out of the 
vaults of the bank by the state auditor by way of en- 
forcing the payment of the tax, and the court sustained 
the jurisdiction on the grounds stated by the Chief 
Justice. In view of the judgment in the cause and 
the dicta of the Chief Justice, it was not unnatural that 
the presence or absence of a state as a party defendant 
on the record should have been regarded as the criterion 
by which to determine whether or not a suit was within 
the purview of the XI Amendment. Indeed in Davis 
V. Gray,^ the court went so far as to hold that a 

1 9 Wheat. 738, 857. ^ p. 868. 

2 p. 858. * 16 Wall. 203. 



THE XI AMENDMENT. 219 

receiver of a railway could sue in equity the gover- 
nor of the state incorporating the railway and the 
land commissioner of the state to restrain the issue of 
patents to individuals for certain lands theretofore 
granted by the state to the railway on certain condi- 
tions, and resumed by the state for alleged non-per- 
formance of the condition, and that it not being pos- 
sible to make the state a party the plaintiff's rights 
could be vindicated by a decree against the officers of 
,the state, but the later decisions of the court have 
tended toward the establishment of a sounder rule on 
this subject; and it is now settled, that the criterion is 
not the presence or absence of the state as a party de- 
fendant on the record, but the question of fact, is or is 
not the suit in substance, though not in form, a suit 
by a citizen of another state against a state ? If a 
state be either a defendant on the record, or the real 
defendant though not a party on the record, the XI 
Amendment forbids the court to take jurisdiction of 
the cause, unless the state by its voluntary appearance^ 
as in Clark v. Barnard,^ submits itself to the jurisdiction 
of the court. In conformity with this view it has 
been held that a suit by, or against, the governor of 
a state in his representative capacity is a suit against the 
state ;^ that the XI Amendment prohibits a suit in the 
federal courts against the officers of a state to enforce the 
performance of a contract made by the state, where the 
controversy is as to the validity and obligation of the 
contract, and where the remedy sought is a perform- 
ance of the contract by the state, the nominal defendants 
having no personal interest in the subject-matter;^ it 

1 108 U. S. 436, 447. 

2 Georgia v. Brailsford, 2 Dall. 402 ; The Governor of Georgia v. Madrazzo,, 
1 Pet. 110 ; Kentucky v. Dennison, 24 How. 466. 

3 Hagood V. Southern, 117 U. S. 52. 



220 THE JUDICIAL POWER. 

has also been held that where a state had bought a rail- 
way from a receiver appointed at its instance, as 
the holder of the first mortgage bonds of the railway, 
the holders of junior bonds having filed a bill to fore- 
close their mortgage and to set aside the sale to the 
state, making the governor and treasurer of the state 
parties defendant, the state being a necessary party to 
the relief sought, the XI Amendment barred the suit ; ^ 
and that state officers cannot be compelled, at the suit 
of a citizen of another state, to appropriate the public, 
money of the state in a way prohibited by the laws of 
the state, for such a suit is in fact a suit against the state, 
and where a state cannot be sued, the court cannot assert 
jurisdiction over the officers of the state, so as to control 
them in their administration of the finances of the 
state.^ It has also been held that the XI Amendment 
bars a suit by one state against another state, where the 
plaintiff state sues, not in its own right, but only for the 
benefit of certain of its citizens who have assigned to it 
their claims against the state defendant ; ^ that a private 
person cannot bring a personal suit in the Supreme 
Court of the United States against a state to recover the 
proceeds of property in the possession of that state, such 
as the proceeds of certain slaves alleged to have been 
illegally seized by the state ; '^ and, in the case of In re 
Ayers,^ that the XI Amendment forbids the court to 
take jurisdiction of a bill in equity filed by a holder of, 
and dealer in, coupons of the bonds of the state, 
the coupons under the statutes of the state and the 
judgments of the court being receivable in payment 

1 Cunningham v. M. & B. R. E., 109 U. S. 446. 
^ Louisiana v. Jumel, 107 U. S. 711. 

^ New Hampshire v. Louisiana, New York v. Louisiana, 108 U. S. 76. 
* Ex parte Madrazzo, 7 Pet. 627 ; The Governor of Georgia v. Madrazzo, 1 
Pet. 110. 

5 123 U. S. 443. 



THE XI AMENDMENT. 221 

of state taxes, to enjoin tlie officers of a state from 
prosecuting, on behalf of the state, actions against citi- 
zens of the state, for collection of taxes, under a statute 
of the state, directing the prosecution of the actions, 
and providing that " if the defendant relies on a tender 
of coupons as payment of the taxes claimed, he shall 
plead the same specifically and in writing, and file with 
the plea the coupons averred therein to have been ten- 
dered," and " the burden of proving the tender and 
the genuineness of the coupons shall be on the de- 
fendants ;" the equity set u|> by the plaintiffs in the 
injunction suit being that they had purchased coupons 
for the purpose of dealing in them and selling them to 
taxpayers to use in payment of taxes to the state, and 
that, unless the action threatened by the state officers 
were enjoined, the plaintiffs would not be able to sell 
their coupons at a profit. Matthews, J., said, " the 
object and purpose of the XI Amendment were to 
prevent the indignity of subjecting a state to the coer- 
cive process of judicial tribunals at the instance of 
private parties. It was thought to be neither becoming 
nor convenient that the several states of the Union, in- 
vested with that large residuum of sovereignty, which 
had not been delegated to the United States, should be 
summoned as defendants to answer the complaints of 
private persons, whether citizens of other states or 
aliens, or that the course of their public policy and the 
administration of their public affairs should be subject 
to, and controlled by, the mandates of judicial tribunals 
without their consent, and in favour of individual in- 
terests. To secure the manifest purposes of the con- 
stitutional exemption guaranteed by the XI Amend- 
ment requires that it should be interpreted, not literally 
and too narrowly, but fairly, and with such breadth and 
largeness as effectually to accomplish the substance of 



222 THE JUDICIAL POWEE. 

its purpose. In this spirit it must be held to cover, not 
only suits brought against a state by name, but those 
also against its officers, agents, and representatives, where 
the state, though not named as such, is, nevertheless, 
the only real property against which alone in fact the 
relief is asked, and against which the judgment or 
decree effectually operates." Harlan, J., dissented on 
the ground that the dictum of Marshall, C. J., in Osborn 
v. The Bank of the United States was conclusive in 
favour of the jurisdiction, and that ^ " the difference 
between a suit against officers of the state enjoining 
them from seizing the property of the citizen in obe- 
dience to a void statute of the state, and a suit enjoin- 
ing such officers from bringing under the order of the 
state, and in her name, an action which, it is alleged, 
will result in injury to the rights of the complainant, 
is not a difference that affects the jurisdiction of the 
court, but only its exercise of jurisdiction. If the former 
is not a suit against the state, the latter should not be 
deemed of that class." On the other hand, it has been 
held that the amendment does not prohibit the exercise 
by the court of its ap23ellate jurisdiction over state courts 
in cases of criminal cognizance, for the purchase or prose- 
cution of a writ of error to reverse a criminal conviction 
at the prosecution of the state is not the commencement 
or prosecution of a suit at law against that state ; ^ nor 
does the XI Amendment prohibit the exercise by the 
court of jurisdiction over a controversy between individu- 
als as toland granted by and claimed under a state ;^ nor 
does the fact that a state is a, or the sole, shareholder in a 
banking corporation prevent the courts of the United 
States from taking cognizance of a suit against such a 

1 p. 546. 

^ Cohens v. Virginia, 6 Wheat. 264. 

^ Fowler v. Lindsay, 3 Dall. 411. 



THE XI AMENDMENT. 223 

corporation/ for, as Marshall, C. J., said,^ "when a 
government becomes a partner in any trading com- 
pany, it divests itself, so far as concerns the transactions 
of that company, of its sovereign character, and takes 
that of a private citizen." Nor does the fact that a 
state claims property, which is not in its own pos- 
session but in the possession of an individual, who has 
been made defendant in an action to recover that prop- 
erty, oust the jurisdiction of the court of the United 
States, nor forbid the court to give judgment in favour 
of the plaintiff.^ It is likewise well settled, that "when 
a plain official duty, requiring no exercise of discretion, 
is to be performed " by an officer of a state " and per- 
formance is refused, any person who will sustain 
personal injury by such refusal may have a mandamus 
to compel its performance ; and when such duty is 
threatened to be violated by some positive official act," 
of an officer of a state, " any person who will sustain 
personal injury thereby, for which adequate compen- 
sation cannot be had at law, may have an injunction to 
prevent it," * or he may maintain an action at law for 
damages against the officer as a wrongdoer. " In either 
case, if the officer plead the authority of an uncon- 
stitutional law for the non-performance or violation of 
his duty, it will not prevent the issuing of a writ. An 
unconstitutional law will be treated by the' courts as null 
and void." ^ In conformity with this principle, it has 
been held that the XI Amendment does not forbid the 
courts of the United States to take cognizance of a 

1 L. C. & C. E. E. V. Letson, 2 How. 497, 550 ; The Bank of the United 
States V. The Planters' Bank, 9 Wheat. 904, 907 ; Bank of Kentucky v. Wister, 
2 Pet. 318, 323; Briscoe v. The Bank of Kentucky, 11 Pet. 257, 324; Curran 
V. Arkansas, 15 How. 304, 309. 

■^ 9 Wheat. 407. ^ United States v. Peters, 5 Cr. 115. 

* per Bradley, J., in Board of Liquidation v. McComb, 92 U. S. 541. 

* per Bradley, J., in Board of Liquidation v. McComb, 92 U. S. 541. 



224 THE JUDICIAL POWEE. 

cause wherein a federal agency, as, for instance, a 
national bank, brings suit against the oflficers of a state 
to eiijoin the enforcement of an unconstitutional law of 
the state taxing that agency.-^ It has also been held 
that state officers may be enjoined at the suit of a holder 
of consolidated bonds of the state which had been issued 
under an agreement for the funding of the debt of the 
state, from issuing others of the consolidated bonds in 
violation of the contract between the state and its bond- 
holders ; ^ and that an action brought by a taxpayer 
against an officer of a state to recover possession of 
property which that officer has wrongfully seized under 
an unconstitutional law of the state for non-payment 
of taxes is an action against that officer as a wrongdoer^ 
and not such an action as is prohibited by the XI 
Amendment.^ 

As the immunity from suit is a personal privilege, 
the state may waive that privilege, and it does waive it, 
when, in a cause pending in a court of the United 
States, in which it has a sufficient interest to entitle it 
to become a party defendant, it causes an appearance to 
be entered by counsel on its behalf, for such an appear- 

^ Osborn v. The Bank of the United States, 9 Wheat. 738, 846. 

2 Board of Liquidation v. McComb, 92 U. S. 531. 

^ The Virginia Coupon Cases, 114 U. S. 269, 284. Some of the cases were 
actions of trespass or detinue ; others of them were bills in equity for an in- 
junction. Bradley, J., with whom concurred Waite, C. J., and Miller and 
Gray, JJ., dissented. Upon a like principle, it has been held, that, officers 
of the LTnited States being wrongfully in possession of land, the fact that they 
hold that possession not for themselves but for the government of the United 
States will not forbid courts to take jurisdiction of the rightful owner's action 
to recover his land, nor prevent judgment in his favour, if his title be made 
out : Meigs v. McClurg's Lessee, 9 Cr. 11 ; Wilcox v. Jackson, 13 Pet. 498 ; 
Grisar v. McDowell, 6 Wall. 363; Brown v. Huger, 21 How, 305 ; United 
States V. Lee,106 U. S. 196. In Mitchel v. Harmony, 13 How. 114, and in Bates v. 
Clark, 95 U. S. 204, the same rule was applied in actions of trespass against 
military officers of the United States for the wrongful seizure of certain per- 
sonal property of the plaintiffs, in obedience to unlawful orders from a 
military superior. 



THE IV AMENDMENT. 225 

aiice is a voluntary submission to tlie jurisdiction of the 
court.^ It is obvious tbat the XI Amendment does not 
affect the jurisdiction granted by the III Article to the 
courts of the United States in actions wherein a foreign 
state, or one of the United States is the plaintiff, and 
one of the United States is the defendant. 

101. The exercise of judicial power by the United 
States is, in some respects, limited by certain other of 
the provisions of the Constitution and its amendments. 
In the most important case that ever came before 
the Supreme Court,^ it was held that neither the Presi- 
dent, nor the Congress, nor the Judicial Department 
can deny to a citizen any one of the safeguards of civil 
liberty incorporated into the Constitution, and in that 
cause a citizen who was held in custody under a sen- 
tence of death pronounced by a military commission 
was released upon habeas corpus. The last clause of 
section 2 of Article III of the Constitution declares that 
" the trial of all crimes, except in case of impeach- 
ment, shall be by jury; and such trial shall be held in 
the state where the said crimes shall have been com- 
mitted ; but when not committed within any state, the 
trial shall be at such place or places as the Congress 
may by law have directed." The IV Amendment de- 
clares that " the right of the people to be secure in their 
persons, houses, papers, and effects, against unreason- 
able searches and seizures, shall not be violated ; and no 
warrant shall issue, but upon probable cause, supported 
by oath or affirmation, and particularly describing the 
place to be searched, and the persons or things to be 
seized." This amendment forbids Congress to authorize 
a court in revenue cases to require, on motion of the 
government's attorney, the defendant, or claimant, to 

1 Clark V. Barnard, 108 U. S. 436, 447. 
^ Ex parte Milligan, 4 Wall. 2. 

15 



226 THE JUDICIAL POWEE. v 

produce m court his books, papers, etc., under penalty 
of admitting the allegations of the government's attor- 
ney as to that which those books, papers, etc., would 
prove if produced.^ 

102. The V Amendment declares, that " no person 
shall be held to answer for a capital or otherwise 
infamous crime, unless on a presentment or indict- 
ment by a grand jury, except in cases arising in the 
land or naval forces or in the militia when in actual 
service in time of war or public danger." This consti- 
tional provision forbids a prosecution upon information 
in the courts of the United States in the cases of crimes 
punishable by imprisonment for a term of years at 
hard labour.^ But the striking of an attorney from 
the rolls for professional misconduct is within the 
proper jurisdiction of the court of which he is an 
attorney and does not violate this constitutional provi- 
sion.^ This amendment also forbids the trial or con- 
viction of a prisoner in a case where after 23resentment 
made by the grand jury, the indictment is without re- 
submission to the grand jury, amended by striking out 
words, even though those words be regarded by the 
court as surplusage, and a prisoner, after trial, convic- 
tion, and sentence on an indictment so amended, is 
entitled to his discharge on habeas corpus.^ The same 
amendment also declares, that, no person shall " be 
deprived of life, liberty, or property without due pro- 
cess of law." In Murray's Lessee v. Hoboken Land 
and Improvement Co.,^ Curtis, J., said, " the words 

^ Boyd V. U. S., 116 U. S. 616. The V Amendment is a restraint upon the 
exercise of powers by the United States, but not by the states: Barron?;. Bal- 
timore, 7 Pet. 243; Withers ?». Buckley, 20Howr. 84; Davidson v. New Orleans, 
96 U. S. 97 ; Kelly D.Pittsburg, 104 id. 78. 

2 Ex f arte Wilson, 114 U, S. 4l7; Mackin v. U. S., 117 id. 348 ; Parkinson v. 
U. S., 121 id. 281. 

3 Bt parte Wall. 107 U. S. 265. "- Ex parte Bain, 121 U. S. 1. 
6 18 How. 272, 276 



THE V AMENDMENT. 227 

* due process of law ' were undoubtedly intended to 
convey the same meaning as the words ' by the law of 
the land ' in Magna Charta. Lord Coke, in his com- 
mentary on those words/ says they mean due process 
of law. The Constitutions, which had been adopted 
by the several states before the formation of the federal 
Constitution, following the language of the great 
charter more closely, generally contained the words, 
'but by the judgment of his peers, or the law of the 
land.' . . . The Constitution contains no descrip- 
tion of those processes which it was intended to allow or 
forbid. It does not even declare what principles are to 
be applied to ascertain whether it be due process. It 
is manifest that it was not left to the legislative power 
to enact any process which might be devised. The 
article is a restraint on the legislative as well as on the 
•executive and judicial powers of the government, and 
cannot be so construed as to leave Congress free to 
make any process due process of law by its mere 
will. To what principle, then, are we to resort to as- 
certain whether this process, enacted by Congress, is 

* due process.' To this the answer must be twofold. 
We must examine the Constitution itself to see whether 
this process be in conflict with any of its provisions. 
If not found to be so, we must look to those settled 
usages and modes of proceeding existing in the 
common and statute law of England, before the 
emigration of our ancestors, and which are shown not 
to have been unsuited to their civil and political con- 
ditions by having been acted on by them after the 
settlement of this country." In Pennoyer v. NefP,^ 
Field, J., said, that the words, " due process of law," 
mean '* a course of legal proceedings, according to 
those rules and principles which have been established 

1 2 Inst. 50. 2 95 u. S. 733. 



228 THE JUDICIAL POWEE. 

in our system of jurisprudence for the protection and 
enforcement of private rights. To give such proceed- 
ings any validity, there must be a tribunal competent 
by its Constitution, that is, by the law of its creation, 
to pass upon the subject-matter of the suit ; and, if 
that involves merely a determination of the personal 
liability of the defendant, he must be brought within 
its jurisdiction by service of process within the state, 
or by his voluntary appearance." In conformity with 
these principles it has been held, that the trial of a 
citizen by military commission within a state where the 
courts are open and the course of justice unobstructed 
is not due process of law.^ It has also been held 
that there is a deprivation of liberty without due pro- 
cess of law when a court by its order, warrant, or com- 
mitment, holds a prisoner in custody, when the prima 
facie case against the prisoner does not show that he 
has committed an offense of which the court commit- 
ting him can take cognizance, and in any such case of 
commitment by an inferior court of the United States 
the Supreme Court will issue a habeas corpus and dis- 
charge the prisoner.^ 

On the other hand, it has been held that the owner 
of property distrained and sold for non-payment of 
taxes due to the United States, is not deprived of his 
property without due process of law\^ It has also been 
held that an officer of the United States, whose accounts, 
as settled by the auditing officers of the Treasury, show 
him to have neglected to account for and pay over 
public moneys received by him, is not deprived of his 

^ Ex parte Milligan, 4 Wall. 2. 

^ United States v. Hamilton, 3 Dall. 17 ; Ex parte Bollman and Swartwout, 
4 Cranch 75; Ex parte Lange, 18 Wall. 163; Ex parte Kearney, 7 Wall. 38; 
Ex parte Wells, 18 How. 307 ; Ex parte Parks, 93 U. S. 18 ; Ex parte Yar- 
brough, no U.S. 651 ; United States v. Waddell, 113 U. S. 76. 

3 Springer v. United States, 102 U. S. 586. 



THE VI AME]!fDMENT. 229 

property without due process of law, when the Solicitor 
of the Treasury, in obedience to the act of Congress of 
15 May, 1820,^ has issued a distress warrant under 
which the defaulting officer's real property has been 
taken in execution and sold by a marshal of the U. 
8. without further proceedings, judicial or otherwise.^ 
The V Amendment also declares, that no person shall 
" be subject for the same offense to be twice put in 
jeopardy of life or limb." Therefore, a second punish- 
ment cannot be imposed for the same crime, and hence 
when a court imposes a fine and imprisonment as a 
punishment where the statute under which the prisoner 
was indicted conferred the power to punish by fine or 
imprisonment, and the fine has been paid, the court 
cannot modify its judgment by thereafter imposing im- 
prisonment alone, for the judgment of the court having 
been executed so as to be a full satisfaction of one of 
the alternative penalties, the power of the court as to 
that offense is ended, and a second judgment on the 
same verdict, is, under such circumstances, void for 
want of power, and the party must be discharged.^ The 
V Amendment also declares, that no person " shall be 
compelled, in any criminal case, to be a witness against 
himself." 

103. The VI Amendment declares that, "in all 
criminal prosecutions, the accused shall enjoy the right 
to a speedy and public trial, by an impartial jury, of 
the state and district wherein the crime shall have been 
committed, which district shall have been previously 
ascertained by law, and to be informed of the nature 
and cause of the accusation ; to be confronted with the 
witnesses against him ; to have compulsory process for 

1 3 Stat. 592. 

^ Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272. 

^ Ex parte Lange, 18 Wall. 163. 



230 THE JUDICIAL POWEE. 

obtaining witneses in his favour, and to liave the assist- 
ance of counsel for his defense." ^ The requirement that 
the prisoner '^be confronted with the witnesses against 
him " will not invalidate a conviction in a case where 
the witnesses are absent by the procurement of the 
prisoner, or where enough has been proven to throw on 
him the burden of showing, and he having full oppor- 
tunity therefor, fails to show, that he has not been 
instrumental in concealing or keeping away the wit- 
nesses, and ground having been thus laid, evidence is 
admissible against him of that which the witnesses 
testified at a previous trial on the same issue between 
the United States and the prisoner.^ 

104. The VII Amendment declares, that, "in suits 
at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be 
preserved." ^ This amendment does not affect equity 
causes in the federal courts, for the determination by a 
court of equity, according to its own course and practice 
of issues of fact, does not impair the right of trial by 
jury, because that right does not extend to causes of 
equitable jurisdiction.^ Nor does this amendment affect 
proceedings upon claims against the United States heard 
in the Court of Claims without the intervention of a 
jury, for the government being suable only by its own 
consent, may declare in what court it will be sued, and 
may prescribe the forms of pleading and rules of 
practice in that court, and such claims so prosecuted 
are not suits at common law.^ Nor does this amend- 

^ This amendment is a restraint upon the judicial action of the United 
States, and not of the states: Twitch ell v. The Commonwealth, 7 Wall. 321. 

* Eeynolds v. United States, 98 U. S. 145. 

^ This amendment is a restraint upon the exercise of powers by the United 
States, but not by the states : Edwards v. Elliott, 21 Wall. 532 ; Walker v. 
Sauvinet, 92 U. S. 90 ; Pearson v. Yewdall, 95 id. 294. 

* Barton v. Barbour, 104 U. S. 726 ; Parsons v. Bedford, 3 Pet. 433, 446. 
5 McElrath v. United States, 102 U. S. 426. 



THE VII AMENDMENT. 231 

ment relieve a j^arty from the consequences of his 
antecedent voluntary relinquishment of a right of trial 
by jury in any particular cause, as, for instance, in the case 
of a banking corporation whose state charter stipulates 
that the bank should have a summary remedy by execu- 
tion without jury trial for the collection of notes indorsed 
to it, and in express terms made negotiable at the bank/ 
The VII Amendment also declares that " no fact tried 
by a jury shall be otherwise re-examined in any court 
of the United States than according to the rules of the 
common law." As Story, J., said in Parsons v. Bed- 
ford," " this is a prohibition to the courts of the United 
States to re-examine any facts tried by a jury in any 
other manner. The only modes known to the common 
law to re-examine such facts, are the granting of a new 
trial by the court where the issue was tried, or to which 
the record was properly returnable ; or the award of a 
'venire facias de novo by an appellate court, for some 
error of law which intervened in the proceedings." 
The amendment obviously governs both the original 
and appellate jurisdiction of the courts of the United 
States, and forbids the reversal of a verdict of a 
jury save as above indicated. Congress cannot by 
statute provide for the removal from a state court into 
a federal court of causes tried by jury in the state court, 
and for a retrial in the federal court of the facts and 
law in such action in the same manner as if the same 
had been originally commenced in the federal court.^ 

105. The federal supremacy prevents the states from 
regulating the process or practice of the courts of the 
United States at law,"^ or in equity,^ or in causes 

^ Bank of Columbia v. Okely, 4 Wheat. 235. 

2 3 Pet. 447. 3 Tj^g Justices v. Murray, 9 Wall. 274. 

* Wayman v. Southard, 10 Wheat. 1 ; Bank of U. S. v. Halstead, ibid. 51. 
5 Borer v. Chapman, 119 U. S. 587. 



232 THE JUDICIAL POWEE, 

of criminal cognizance/ but " the laws of tlie sev- 
eral states, except when the Constitution, treaties, or 
statutes of the United States otherwise require or 
provide, shall be regarded as rules of decision in trials 
at common law, in the courts of the United States in 
cases where they apply." ^ The federal supremacy also 
forbids the courts of the states to refuse obedience to a 
mandate of the Supreme Court of the United States, 
reversing a judgment of a state court in a cause which 
is of federal cognizance ; ^ and it prevents a state legis- 
lature from annulling by statute the judgment of a 
court of the United States in a cause which is within the 
jurisdiction of the court.* While a state cannot confer 
jurisdiction on a court of the United States, yet a state 
may by its legislation create legal and equitable rights 
which can be enforced in a court of the United States 
in a cause whereof that court has acquired jurisdiction 
by reason of either the citizenship of the parties or the 
federal character of the subject-matter of litigation; 
thus, pilotage being a subject of admiralty and, there- 
fore, of federal jurisdiction, a pilot may sue in a court of 
the United States to recover pilotage under a state 
statute; ^ and the right under a state statute to recover 
damages for a death caused by negligence is enforcible 
in a cause between proper parties in a court of the 
United States ;^ and liens created by state laws in favour 
of material men for supplies furnished to vessels in 

1 U. S. V. Keid, 12 How. 361. 

2 Act of 24 September, 1789, c. 20, Sec. 34, 1 Stat. 92 ; Eev. Stat. Sec. 721. 
See Field's Federal Courts, p. 430. 

3 Martin v. Hunter's Lessee, 1 Wheat. 304, * IT. S. v. Peters, 5 Cr. 115. 
The general principle that the lex fori governs the limitation of actions 

applies to actions brought originally in the courts of the United States, and 
also to actions removed thereto from the courts of the states: Arnson v. 
Murphy, 109 U. S. 238; Mitchell v. Clark, 110 id. 633. 

5 Hobart v. Drogan, 10 Pet. 120 ; Ex parte McNeil, 13 Wall. 236. 

6 C. & N. W. Ky. V. Whitton, 13 Wall. 270. 



CONFLICT OF JURISDICTION-. 233 

their home ports or for materials furnished to ships in 
23rocess of construction may be enforced in the courts of 
the United States.^ 

106. A court of the United States cannot enjoin pro- 
ceedings in a court of a state," save in aid of bankrui^tcy 
proceedings pending in a court of the United States, or 
as a means of preventing the enforcement in a court of a 
state of a judgment entered therein after a cause has been 
properly removed to a court of the United States ; ^ nor 
can the courts of the United States issue writs of man- 
damus to courts of the states, by way of original pro- 
ceedings where such writs are not ancillary to a juris- 
diction which has already attached in the federal court,* 
but where the jurisdiction of the federal court has pre- 
viously attached to a cause, that court may, as jorocess of 
execution to enforce its judgment, issue a writ oi man- 
damus,^ and enforce obedience thereto, notwithstanding 
a court of the state may have, by injunction, fofbidden 
the parties defendant to obey the mandamus.^ 

Chattels takeii in execution under the judgment of a 
€0urt of a state and delivered to a claimant upon his 
giving bond therefor cannot be seized by a marshal 
under the process of a court of the United States.'^ A 

1 Edward's v. Elliott, 21 Wall. 532 ; The Lottawamna, ibid. 588. Where the 
jurisdiction of a court of the United States has attached, a party to the suit, 
who refuses or neglects to obey its process, will be liable in damages to any 
.party injured by such neglect or refusal (Amy v. Supervisors, 11 Wall. 136), 
and a trustee of property to which the jurisdiction of a court of the United 
States has attached will be held personally responsible if, without adequate 
resistance, he surrender such property to the process of a court of a state. 
Chittenden?;. Brewster, 2 Wall. 191. 

2 Diggs V. Walcot, 4 Cr. 179 ; Watson v. Jones, 13 Wall. 679 ; Haines v. 
Carpenter, 91 U. S. 254; Dial v. Reynolds, 96 ic^. 340; Leroux v. Hudson, 109 
id. 468. 

3 French v. Hay, 22 Wall. 250 ; Dietzsch v. Huidekoper, 103 U. S. 494. 
* Bath County v. Amy, 13 Wall. 244. 

^ Riggs V. Johnson County, 6 Wall. 166 ; Amy v. Supervisors, 11 id. 136. 
6 The Mayor v. Lord, 9 Wall. 409 ; The Supervisors v. Durant, ibid. 415. 
^ Hogan V. Lucas, 10 Pet. 400. 



234 THE JUDICIAL POWEE. 

court of tlie United States exercising jurisdiction in 
bankruptcy cannot divest liens upon the bankrupt's 
property created by the judgments, either interlocutory 
or final, of the courts of the states ; ^ the assets of the 
estate of an insolvent decedent in process of judicial ad- 
ministration under the order of a Probate Court of a 
state are not subject to levy under an execution issued by 
a court of the United States;^ and the trustee appointed 
by a court of a state under a state statute to liquidate 
a corporation whose charter has been forfeited cannot 
be sued in a court of the United States by creditors of 
the corporation to compel his allowance of a claim 
against the corporation.^ 

107. As Catron, J., said in the judgment in the case 
of The Bank of Alabama v. Dalton,* " in administering 
justice . . . the states of this Union act independ- 
ently of each other, and their courts are governed by 
the laws and municipal regulations of that state, where 
a remedy is sought, unless they are controlled by the 
Constitution of the United States, or by laws enacted 
under its authority." The most important of the 
restraints imposed by the Constitution upon the exer- 
cise of judicial jurisdiction by the states result from the 
grant, in the III Article of the Constitution, of judicial 
power to the United States over certain subjects of 
jurisdiction, and from the power of Congress to render 
that j urisdiction exclusive. Nevertheless, as the Con- 
stitution, laws, and treaties of the United States are 
" the supreme law of the land," the states, wherever 
Congress has not, by legislation within the limits of 
its constitutional powers, excepted any subject from 

^ Peck V. Jenness, 7 How. 612. 
2 Williams v. Benedict, 8 How. 107. 

^ Peale v. Phipps, 14 How. 368. See, also, Vaughan v. Northrop, 15 Pet.. 
1 ; Wiswall v, Sampsoiij 14 How. 52 ; c/. Erwin v. Lowry, 7 How. 181. 
* 9 How. 527. 



FEDERAL SUPREMACY. 235 

the jurisdiction of tlieir courts, may exercise jurisdiction 
therein, and, in such cases, rights arising under the 
Constitution, laws, and treaties of the United States 
may be administered, subject, of course, to the appellate 
jurisdiction of the Supreme Court of the United States, 
and to the ris-ht of removal to the federal courts of the 
first instance; thus, a tribunal constituted by a state 
may enforce the militia laws of the United States ; ^ and 
an assignee in bankruptcy may sue in a court of a state 
to recover the assets of the bankrupt.^ But where 
Congress has expressed its will that the courts of the 
United States shall exercise exclusive jurisdiction over 
any subject-matter, which is included within the con- 
stitutional grant of judicial power to the United States, 
the courts of the states cannot directly exercise judicial 
jurisdiction over such subject-matter. Upon this prin- 
ciple, a court of a state cannot take cognizance of an 
act declared to be criminal by the statutes of the United 
States, unless that act be also an offense against the laws 
of the state.^ A state court cannot take jurisdiction 6f 
a cause of admiralty cognizance,'^ such as a proceeding 
in rem founded upon a contract for the transportation 
of passengers by sea, or upon a collision,^ or upon a 

^ Houston V. Moore, 5 W^heat. 1. 

2 Claflin V. Houseman, 93 U. S. 130 ; Teal v. Felton, 12 How. 284, referred 
to by Bradley, J., 93 U. S. 142, was an action of trover for a newspaper which 
a postmaster wrongfully refused to deliver. See also Eyster v. Gaff, 91 U. S. 
521 ; Ex parte Christie, 3 How. 318, 319 ; iNugent v. Bond, ibid. 426. 

^ There is a concurrent jurisdiction over crimes, when the criminal act is 
an offense against the laws of both the United States and of the states ; thus, 
a state may punish the offense of uttering or passing false coin as a fraud 
practiced on its citizens : Fox v. Ohio, 5 How. 432, and the United States may 
punish the same act as a crime against it : United States v. Marigold, 9 How. 
560. In the same way, a state might have, before the adoption of the XIII 
Amendment, punished the harbouring of a fugitive slave : Moore v. Illinois, 
14 How. 13, while the same act could have been punished in the courts of the 
United States as an offense against the fugitive slave legislation of Congress. 

* The Moses Taylor, 4 Wall. 411. 

^ The Hine v. Trevor, 4 Wall. 555. 



236 THE JUDICIAL POWEE. 

contract of affreightment,^ but a state court may take 
jurisdiction of an action in personam for mariners' 
wages,^ or of a proceeding in rem founded upon a lien 
given by a state statute for materials supplied in build- 
ing a sliip,^ for such actions are not necessarily of 
admiralty cognizance. A state court cannot take juris- 
diction of an action at law against a foreign consul.* 
A state court cannot take jurisdiction in patent 
causes, nor determine the validity of a patent, or a 
question of infringement,^ but a state court may inci- 
dentally pass upon the validity of a patent, as, for 
instance, where it is questioned in an action for the 
price of the patent.^ The distinction running through 
the cases is, that, where Congress has excepted from 
the action of the courts of the states any subject- 
matter of federal jurisdiction as designated in the Con- 
stitution, the courts of the states thenceforth cannot 
directly, but may indirectly and collaterally, act upon 
such subject-matter. The courts of the states cannot 
i^sue an injunction before final decree, nor an attach- 
ment on mesne process, against a national bank.'^ The fed- 
eral supremacy forbids a court of a state to issue a man- 
damus to an officer of the United States,^ or, by its pro- 
cess, to take in execution goods imported into a port of 
the United States, but not yet entered at the Custom- 
House for payment of duties to the United States,^ or 
goods, which, having been seized for violation of the rev- 
enue laws of the United States, are in the custody of a 
marshal of the United States.-^*^ Nor can a court of a state 

1 The Belfast, 7 V7all. 624. ^ Edwards v. Elliott, 21 Wall. 532. 

2 Leon V. Galceran, 11 Wall. 185. * Davis v. Packard, 7 Pet. 276. 

5 Eev. Stat., Sec. 711. Per Bradley, J., in Claflin v. Houseman, 93 U. S. 
140. 

® See the judgment of Gray, J., in Nash v. Lull, 102 Mass. 60. 

^ Eev. Stat. 5242 ; Pacific National Bank v. Mixter, 124 U. S. 721. 

s McClurg V. Silliman, 6 Wheat. 598. 
, » Harris v. Dennie, 3 Pet. 292. i» Slocum v. Mayberry, 2 Wheat. 1. 



FEDEKAL SUPREMACY. 237 

take jurisdiction of a suit to determine whether or not 
property has been rightfully forfeited under the laws of 
the United States.^ Nor can a court of a state by injunc- 
tion in equity restrain the execution of a judgment of 
a court of the United States;^ nor, under a state in- 
solvent law, discharge a defendant held in custody 
under a capias ad satisfaciendum issued by a court of 
the United States;^ nor replevy property taken in 
execution under a judgment of a court of the United 
States;* nor order the release, after a hearing on 
habeas corpus, of a prisoner held in custody by an 
officer of the United States under a warrant of commit- 
ment from a commissioner of a Circuit Court of the 
United States upon a charge of the commission of an 
offense against the laws of the United States, or of a 
prisoner held in custody by the United States after a 
trial and conviction in a court of the United States of 
an offense against the laws of the United States ; ^ nor 
release upon habeas corpus an enlisted soldier in the 
army of the United States, detained in custody under 
the order of his commanding officer.*^ Nor can an at- 
tachment of a debt by the process of a state court, after 
the commencement of a suit upon that debt in a court 
of the United States bar the plaintiff's recovery in that 
suit,^ nor can the pendency of state insolvent proceedings 
to set up as a bar to suits in the courts of the United 

^ Galston v. Hoyt, 3 Wheat. 246. ^ McKim v. Voorhies, 7 Cr. 279. 

^ Duncan v. Darst, 1 How. 301. 

* Freeman v. Howe, 24 How. 450 ; Covell v. Heyman, 111 U. S. 176. 

^ Ablenian v. Booth, 21 How. 506. 

^ Tarble's Case, 13 Wall. 397. A state court may, nevertheless, by process 
of habeas corpus, inquire into the legality of the detention of a person, who, 
having been arrested as a fugitive from the justice of another state, is detained 
in custody by an agent of that other state under a warrant issued by the 
governor of the state within whose territory the alleged fugitive has come ; 
Robb V. Connolly, 111 U. S. 624. 

' Wallace v. McConnell, 13 Pet. 136. 



238 THE JUDICIAL POWEE. 

States brought by parties who are constitutionally en- 
titled to sue therein.^ 

108. In the cases of persons who, or of property 
which, may be subject to the jurisdiction of the courts 
of the United States, and also to that of the courts of 
the states, that jurisdiction, which first actually attaches 
either to the person or the property, will retain control 
and cannot be divested by process issued from the other 
jurisdiction.^ An officer who, in executing the process 
issued by a court in a cause within its jurisdiction, seizes 
property which that process specifically designates, is 
not liable to action therefor in a court of another juris- 
diction ; but an officer who, under a judgment in per- 
sonam,, seizes property not specifically designated in the 
process is liable, and may be sued therefor in a court of 
another jurisdiction,^ and the party injured by such a 

1 Suydam v. Broadnax, 14 Pet. 67 ; Hyde v. Stone, 20 How. 170 ; Green v. 
Creighton, 23 id. 90. 

2 Smith V. Mclver, 9 Wheat. 532 ; Taylor v. Carryl, 20 How. 583 ; Pulliam 
V. Osborne, 17 id. 471 ; Herdritter v. Elizabeth Oil Cloth Co., 112 U. S. 294 ; 
Slocum V. Mayberry, 2 Wheat. 1 ; Freeman v. Howe, 24 How. 450 ; Covell v. 
Heyman. Ill U. S. 176 ; Wallace v. McConnell, 13 Pet. 136 ; Hagan v. Lucas, 
10 Pet. 400 ; Peck v. Jenness, 7 How. 612 ; Williams v. Benedict, 8 How. 107 ; 
Peale v. Phipps, 14 id. 368 ; Wiswall v. Sampson, ibid. 52 ; Erwin v. Lowry, 7 
id 81. In Covell ?). Heyman, 111 U. S. 182, Matthews, J., said, "the for- 
bearance which courts of co-ordinate jurisdiction, administered under a single 
system, exercise toward each other, whereby conflicts are avoided, by avoiding 
interference with the process of each other, is a principle of comity, with, 
perhaps, no higher sanction than the utility which comes from concord ; but 
between state courts and those of the United States it is something more. It 
is a principle of right and of law, and, therefore, of necessity. It leaves 
nothing to discretion or mere convenience. These courts do not belong to the 
same system, so far as their jurisdiction is concarrent ; and although they co- 
exist in the same space, they are independent, and have no common superior. 
They exercise jurisdiction, it is true, within the same territory, but not in the 
same plane ; and when one takes into its jurisdiction a specific thing, that res 
is as much withdrawn from the judicial power of the other as if it had been 
carried physically into a different territorial sovereignty. To attempt to seize 
it by a foreign process is futile and void. The regulation of process, and the 
decision of questions relating to it, are part of the jurisdiction of the court 
from which it issues." 

3 Slocum V. Mayberry, 2 Wheat. 1 ; Day v. Gallup, 2 Wall. 97 ; Buck v. 
Colbath, 3 id. 334. 



THE XIV AMENDMENT. 239 

wrongful act by a marshal of tlie United States may 
sue on the marshal's official bond;^ or, he may file a 
bill in the federal court to restrain or regulate its 
judgment.^ 

109. The exerciseof judicial jurisdiction by the states 
is also restricted by that provision of the XIV Amend- 
ment which declares, " nor shall any state deprive any 
person of life, liberty, or property, without due process 
of law, nor deny to any person within its jurisdiction 
the equal protection of the laws." Field, J., in Pennoyer 
V. Neff ^ defined the words " due process of law " to 
mean " a course of legal proceedings according to those 
rules and principles which have been established in our 
systems of jurisprudence for the protection and enforce- 
ment of private rights;" and he added, "to give such 
proceedings any validity, there must be a tribunal com- 
petent by its constitution, that is, by the law of its 
creation, to pass upon the subject-matter of the suit; 
and, if that involves merely a determination of the per- 
sonal liability of the defendant, he must be brought 
within its jurisdiction by service of process within the 
state, or his voluntary appearance." * Of course, as 
Field, J., concedes in his judgment, and as is well settled 
by other authority, a court may by a proceeding w rem, 
and without any service of personal process, determine 
the rights of an absent party to a S|)ecific res, which is 
within the territorial jurisdiction of the court; a court 
may so determine the status of one of its citizens as to 
conclude, within the territorial jurisdiction of the court, 
IDersons who have not been served with process ; and an 
appellate court may regulate, in its discretion, notice of 
the removal to it of a cause depending in a court of the 

^ Lammon v. Feusier, 111 U.S. 17. 
; 2 Krippendorf V. Hyde, 110 U. S. 276. » 95 U. S. 733. 

^ Boswell's Lessee v. Otis, 9 How. 336 ; Harris v. Hardeman, 14 How. 334. 



240 THE JUDICIAL POWEK. 

first instance, and in wliicli the parties have in the 
court below either voluntarily appeared, or been duly 
served with process.^ It has been held, under the XIV 
Amendment, that the exercise of the right of eminent 
domain^ and the procedure for the collection of assess- 
ments and taxes,^ cannot be said to deprive of property 
without due process of law, if provision be made " for a 
mode of confirming and contesting the charge, thus im- 
posed, in the ordinary courts of justice, with such notice 
to the person, or such proceedings in regard to the prop- 
erty, as is appropriate to the nature of the case." "^ It has 
also been held that a state statute, directing the abate- 
ment of, as a nuisance, the manufacture of liquors does 
not deprive of property without due process of law.^ It 
has also been held, that a statute of a state, which, as con- 
strued by its courts, provides that the fact that a person 
called as a juror in the trial of a criminal cause is not 
to be disqualified because he has formed an opinion or 
impression based upon rumor or newspaper statements, 
if he shall upon oath state that his verdict will be based 
only on the evidence at the trial, does not deprive the 
prisoner tried by such jurors of life, liberty, or prop- 
erty without due process of law.^ A state may also by 
statute make water rates a lien on land prior to the lien, 
of a mortgage of date subsequent to the statute ; '^ it may 
require a purchaser of land under a sale for non-pay- 
ment of taxes to bring his possessory action within five 

^ Nations v. Johnson, 24 How. 195. 

2 Pearson v. Yewdall, 95 U. S. 294. 

3 Kelly V. Pittsburgh, 104 U. S. 78 ; McMillen v. Anderson, 96 U. S. 37 ; 
Hagar v. Keclamation District, 111 U. S. 701 ; Kentucky E. R. Tax Cases, 115 
U. S. 321 ; Davidson v. New Orleans, 96 U. S. 97 ; Wurts v. Hoagland, 114 U., 
S. 606 ; Head v. A. Manufacturing Company, 113 U. S. 9. 

* per Miller, J., in Davidson v. New Orleans, 96 U. S. 97. 

5 Mugler V. Kansas, 123 U. S. 623. 

« Spies V. Illinois, 123 U. S. 131. 

^ Provident Institution v. Jersey City, 113 U. S. 506. 



XIV AMENDMENT. 241 

years after tlie sale;^ and it may, without depriving a 
debtor of his property, repeal a statute of limitations 
after the debt is thereby barred.^ Nor does the XIV 
Amendment restrain state action in the regulation of its 
judicial proceedings, provided there be no discrimi- 
nation therein as a2;ainst classes of citizens. A state 
may, therefore, without violating the amendment, re- 
strain or take away the right of trial by jury in civil 
cases,^ or it may permit the prosecution of crimes by 
information after examination and commitment by a 
magistrate.^ So also a state may freely prescribe the 
jurisdiction of its several courts, both as to their terri- 
torial limits and the subject-matter, amount, and finality, 
of their respective judgments and decrees, and it may 
vest in one court final ap^^ellate jurisdiction over the 
courts of certain counties, and in another court the like 
jurisdiction over other counties.^ Nor does the amend- 
ment interfere with a state's regulation of the remedies 
afforded to creditors of its municipalities for the col- 
lection of their debts.^ Nevertheless, a state may not 
to the prejudice of a coloured man, who is put upon his 
trial for an offense against its laws, refuse to other 
coloured men the privilege of serving upon the jury, nor 
compel such a prisoner to submit to a trial by a jury 
from which citizens of African descent are by reason of 
their race excluded, for to do so is to deny to the 
prisoner the equal protection of the laws.'' And a judge, 
in whom there is vested by a state statute a discretion in 
the selection of jurors, and who, in the exercise of that 

1 Barrett v. Holmes, 102 U. S. 651. * Campbell v. Holt, 108 U. S. 477. 

» Walker v. Sauvinet, 92 U. S. 90; Church v. Kelsey, 121 U. S. 282. 
* Hurtado v. California, 110 U. S, 517. 
5 Missouri v. Lewis, 101 U. S. 22. 

® Louisiana v. New Orleans, 109 U. S. 285; Commissioners of Tippecanoe v. 
Lucas, 93 id. 108. 
^ Strauder v. West Virginia, 100 U. S. 303 ; Bush v. Kentucky, 107 U. S. 110. 
16 



242 THE JUDICIAL POWER. 

discretion, excludes coloured jurors, by reason of their 
col our, is liable to indictment in a federal court therefor.^ 
But a prisoner cannot insist upon having a jury com- 
posed, either in part or in whole, of his own race, for 
all that he can rightfully demand is a jury from which 
men of his race are not excluded because of their colour.^ 
Nevertheless, the amendment being directed against 
state legislation and not against a judicial miscon- 
struction of such legislation by the courts of the state, 
when a state legislature has enacted laws for the gov- 
ernment of its courts, which, if followed, will furnish all 
parties with the needed protection to life, liberty, and 
property, it has performed its constitutional duty, and 
if one of its courts, acting within its jurisdiction, makes 
an erroneous decision, the state cannot be deemed guilty 
of violating the amendment; thus, where a state statute 
required of all guardians the giving of a bond before 
selling their wards' real estate, the fact that a court per- 
mitted a sale to be made without requiring the giving of 
such a bond is not a violation of the Amendment.^ 

110. The judicial action of the states is also re- 
strained by Section 1 of Article IV of the Constitution, 
which declares that, " full faith and credit shall be 
given, in each state, to the public acts, records, and 
judicial proceedings of every other state. And the 
Congress may, by general laws, prescribe the manner 
in which such acts, records, and proceedings shall be 
proved, and the effect thereof." Under this constitu- 
tional grant of authority Congress has enacted,^ that 
" the acts of the legislature of any state or territory, or 
of any country subject to the jurisdiction of the United 

^ Ex parte Virginia, 100 U. S. 339. 

2 Virginia v. Eives, 100 U. S. 313 ; Bush v. Kentucky, 107 U. S. 110. 

8 Arrowsmith v. Harmoning, 118 U. S. 194. 

* Act of 26 May, 1790, 1 Stat. 122 ; Section 905, Eev. Stat. 



PROOF OF RECORDS. 243 

States, shall be authenticated by having the seals of 
such state, territory, or country affixed thereto. The 
records and judicial proceedings of the courts of any 
state or territory, or of any such country, shall be 
proved or admitted in any other court within the 
United States by the attestation of the clerk, and the 
seal of the court annexed, if there be a seal, together 
with a certificate of the Judge, Chief Justice, or presid- 
ino; mao-istrate, that the said attestation is in due form. 
And the said records and judicial proceedings so au- 
thenticated, shall have such faith and credit given to 
them in every court within the United States as they 
have by law or usage in the courts of the state from 
which they are taken." Legislative acts of a state are, 
under the terms of the Act of 1790, authenticated by 
the seal of the state, and in the absence of contrary 
proof, the seal will be presumed to have been affixed 
by the officer having its custody and duly authorized 
to affix it to the record.^ Such acts will " be given 
the same effect by the courts of another state that they 
have by law and usage " in the state of their enact- 
ment;^ and, as the courts of every state and country 
have the exclusive power of construing its local 
statutes, their construction thereof will be followed in 
the courts of other countries and states.^ It is essential 
to the enforcement in the courts of the states of the 
legislative acts^ and records of judicial proceedings in 
the courts ^ of another state, that they be certified in 
strict compliance with the directions of the act of Con- 
gress. But a judgment of a state court, though certi- 

1- United States v. Amedy, 11 Wheat. 392. 

2 C. & A. R. R. V. W. F. Co , 119 U. S. 615, 622. 

3 Elmendorf t). Taylor, 10 Wheat. 152; Smith v. Coudry, 1 How. 28. 
* United States v. Amedy, 11 Wheat. 392. 

5 Caperton v. Ballard, 14 Wall. 238 ; Ferguson v. Harwood, 7 Cr. 408 ; 
Owings V. Hull, 9 Pet. 607, 627. 



244 THE JUDICIAL POWEE. 

fied in accordance with tlie act of Congress, does not 
operate propria vigor e in another state, and in order to 
give it the force of a judgment in that other state, suit 
must be brought upon it there, and the period of 
limitation as prescribed by the lex fori may be pleaded 
as against such a judgment.^ When so certified and 
sued upon, such judgments must be given the same 
effect that is given to them in the jurisdiction in which 
they have been rendered. Therefore, to an action on a 
judgment so certified, nil debet cannot be pleaded ; ^ nor 
can fraud be pleaded to an action on such a judgment.^ 
When the record of a judgment falsely recites an appear- 
ance by counsel, it cannot be collaterally im|)eached, 
when sued upon in another state, for it might have been 
set aside by audita querela, in the jurisdiction wherein it 
was rendered.* But no greater effect can be given in a 
state court to a judgment of a court of another state than 
would be given to that judgment in the state where ren- 
dered. Therefore, a j^ersonal judgment which has been 
rendered in one state against several parties jointly, 
service of process having been made on some of them, 
or they having voluntarily appeared, and service hav- 
ing been made by publication as to the others, is not 
evidence outside of the state of any liability on the 
part of those not personally served.^ Nor will a judg- 
ment rendered in one state against two joint debtors, 

1 McElmoyle v. Cohen, 13 Pet. 312 ; Bacon v. Howard, 20 How. 22 ; The 
Bank of Alabama v. Dalton, 9 How. 522. 

2 Armstrong v. Carson, 2 Dall. 303 ; Mills v. Duryee, 7 Cr. 481 ; Hampton 
V. McConnell, 3 Wheat. 234. 

3 Christmas v. Eussell, 5 Wall. 290 ; Maxwell v. Stewart, 22 id. 77. 

* Landes v. Brant, 10 How. 348, 371. A judgment conclusive in the state 
in which it has been rendered is conclusive in the courts of the United States. 
Christmas v. Eussell, 5 Wall. 302 ; Cheever v. Wilson, 9 Wall. 108 ; Pennoyer 
V. Neff, 95 U. S. 714; Caldwell v. Carrington, 9 Pet. 86; C. & A. E. E. v. W. 
F. Co.,' 108 U. S. 18. 

6 Board of Public Works v. Columbia College, 17 Wall. 521. 



EFFECT OF EECOEDS. 245 

only one of whom has been served with process, sup- 
port an action in a court of another state against the 
party not served, nor avail as the foundation of a judg- 
ment against liim.^ A judgment recovered in one state 
against two joint defendants, one of whom has been 
duly summoned and the other has not, and which is 
valid and enforcible by the law of that state against 
the party served with process, will support an action 
against that party in another state.^ It is an essential 
prerequisite to the enforcement in any court of a judg- 
ment, either in personam or in rem, rendered in any 
court, that the court rendering the judgment had by 
law jurisdiction of the subject-matter of the suit;^ and, 
if the judgment was in personam, that the defendant 
either was served with process within the territorial 
jurisdiction of the court, or voluntarily appeared in the 
suit;^ and, if the judgment was in rem, that the res 
was within the territorial jurisdiction of the court 
acting upon it, and was properly brought under its 
control;^ for process issued by any court, and served 
personally on a defendant out of its territorial jurisdic- 
tion, and process published within that territorial juris- 
diction, are equally unavailing in a proceeding to 
establish a personal liability on the part of the defend- 

^ D'Arcy v. Ketchum, 11 How. 165. 

2 Hanley v Donoghue, 116 U. S. 1 ; Eenaud v. Abbott, ibid. 277. 

3 Thompson v. Whitman, 18 Wall. 457 ; Eose v. Himely, 4 Cr. 241, 269 ; 
Elliott V. Piersol, 1 Pet. 328, 340 ; Voorhees v. Bank of the U. S., 10 Pet. 
449, 475 ; Wilcox v. Jackson, 13 Pet. 498, 511 ; Shriver's Lessee v. Lynn, 2 
How. 43, 59 ; Lessee of Hickey v. Stewart, 3 How. 750, 762 ; Williamson v. 
Berry, 8 How. 495, 540 ; Glass v. Sloop Betsy, 3 Dall. 7 ; Thompson v. Whit- 
man, 18 Wall. 457 ; Maxwell v Stewart, 22 Wall. 77. 

* Pennoyer v. Neff, 95 U. S. 714 ; St. Clair v. Cox, 106 U. S. 350 ; D'Arcy 
V. Ketchum, 11 How. 165 ; Mayhew v. Thatcher, 6 Wheat. 129 ; La Fayette 
Ins. Co. V. French, 18 How. 404; Harris v. Hardman, 14 Row. 334 BischofF 
V. Wethered, 9 Wall. 812; Board of. Public Works v. Columbia College, 17 
Wall. 521. 

* Boswell V. Otis, 9 How. 336; Cooper v. Eeynolds, 10 Wall. 308; Ennis v. 
Smith, 14 How. 400, 430. 



246 THE JUDICIAL POWEK. 

ant, and while, where property is by seizure or some 
equivalent act brought within the control of a court, sub- 
stituted service by publication is sufficient to inform a 
non-resident owner of the property of the object of the 
proceeding, such publication is not effectual to ground 
a personal liability upon.-^ But if a non-resident de- 
fendant has by attorney voluntarily appeared in the 
action, and judgment has been rendered in his favour 
in the court of the first instance, he may, after the 
withdrawal of his attorney's appearance, be notified, by 
publication, of a writ of error or appeal, by means of 
which the cause is removed to an appellate tribunal, 
and a judgment of reversal in that tribunal will be 
binding on him as a judgment in 'personam, and as such 
enforcible against him in the court of another state.^ 
And a judgment in personam may be rendered in a 
proceeding in rem against a defendant out of the juris- 
diction, who has by his voluntary appearance made 
himself a party to the litigation, and such a judgment 
is enforcible by an action thereon in another state 
against that defendant.^ Where a corporation char- 
tered by one state is permitted by another state to 
transact business therein upon condition that service of 
process upon a resident agent of the corporation should 
be considered as service upon the corporation, a judg- 
ment rendered in the latter state against the corpo- 
ration, and based upon such service of process upon the 
agent, must be received in the state chartering the cor- 
poration with the same faith and credit that is given to 
it in the state wherein it is rendered.^ But a judgment 

^ Pennoyer v. Neff, 95 U. S. 714; Cooper v. Eeynolds, 10 Wall. 308; 
Webster v. Keid, 11 How. 437 ; Phelps v. Holker, 1 Dall. 261 ; Freeman v. 
Alderson, 119 U. S. 185. 

^ Nations v., Johnson, 24 How. 195. 

2 Maxwell v. Stewart, 22 Wall. 77. 

* Lafayette Ins. Co. v, French, 18 How. 404. 



EFFECT OF KECOEDS. 247 

in personam rendered against a foreign corporation in a 
suit begun in a state court by an attachment of prop- 
erty, and, as incident thereto, a service of a copy of the 
writ and an inventory of the attached property on a 
resident agent, without appearance by the corporation, 
is not conclusive in another action to which the corjDO- 
ration is a party in a court of the United States.^ The 
record of a judgment rendered in another state may be 
contradicted as to the facts necessary to give the court 
jurisdiction, and its recital of the existence of such facts 
is not conclusive, and want of jurisdiction may be shown 
either as to the subject-matter or as to the person, and, 
in proceedings in rem, as to the res. Therefore, in an 
action of trespass de bojiis, etc., in a court of the United 
States against a county sheriff of New Jersey for taking 
the plaintiff's oj'ster boat, the defendant having pleaded 
in justification the record of a forfeiture of the boat 
under a New Jersey statute, authorizing a summary 
conviction on a hearing by two justices of the county in 
which the seizure was made, it was held, that the recital 
in the record of a seizure of the boat in the county in 
which the justices exercised jurisdiction was open to 
contradiction by evidence that the seizure was not made 
within the territorial limits of that county.^ On the 
same principle, a recital in a record of a personal service 
of a summons upon a defendant, may be contradicted 
by proof that the defendant was not served.^ Admin- 
istrators in different jurisdictions of the personal estate 
of the same decedent are not privies in estate to the 
extent that a judgment in one jurisdiction against one 
administrator is enforcible in the other jurisdiction 
against the administrator therein.* An objection to the 

1 St. Clair V. Cox, 106 U. S. 350. 

2 Thompson v. Whitman, 18 Wall. 457. 

8 Knowles v. Tlie G. & C. Co., 19 Wall. 58. 
^ * Stacy V. Thrasher, 6 How. 44. 



248 THE JUDICIAL POWEE. 

informality of tlie authentication of a record cannot be 
made by a party who has antecedently offered tliat 
identical record in another proceeding.^ A state statute 
of limitations, providing that suits upon judgments 
rendered in other states, if not brought within two 
years shall be barred, is a bar to an action on such a 
judgment against one who only became a citizen of the 
state on the day on which suit was brought.^ Wher- 
ever a state court refuses in a cause to give due effect 
to a judgment rendered in a court of the United States, 
or in a court of another state, having by law juris- 
diction of the subject-matter of litigation, and having 
acquired by due service of process, or otherwise, juris- 
diction of the person of the party against whom 
judgment has been rendered, the action of the state 
court in so refusing is subject to review in the Supreme 
Court of the United States under the 25th Section of 
Judiciary Act of 1789, and the Act of 5 February, 
1867.^ The record of a court of the United States is 
sufficiently proved when certified by the clerk of the 
court under its seal.^ And the judgments of the courts 
of the United States, when sued upon, or set up by 
way of defense in state courts, are, if rendered in a 
cause of which the court of the United States had 
jurisdiction both as to the subject-matter and the res or 
the person of the defendant, conclusive upon the parties 
and privies thereto, and enforcible in the state courts 
to the same extent as in courts of the United States.^ 
Judgments rendered in courts of the United States in 
causes, jurisdiction of which was obtained by reason of 
the citizenship? of the parties, and in which the law of 

1 Urtetiqui v. D'Arbel, 9 Pet. 692. 

2 Bank of the State of Alabama v. Dalton, 9 How. 522. 

3 14 Stat. 385. Eev. Stat. Sec. 709. 

4 Turnbull v. Payson, 95 U. S. 418. 
6 Embry v. Palmer, 107 U. S. 3. 



RECORDS OF STATE COURTS. 249 

the state within which the court sat was administered, 
have only that validity and effect which is due to a judg- 
ment of a court of the state in such a cause/ and, there- 
fore, a court of a state which refuses to give a greater 
effect to such a judgment of a court of the United 
States cannot be said to decide against a title or right 
claimed under an authority exercised under the United 
States. 

^ Dupasseur v. Rochercau, 21 Wall. 130. 



\ 



CHAPTER XI. 

EIGHTS OF PEESON AND OF PEOPEETY. 

111. Citizenship of the United States. 

112. Citizenship of a atate. 

113. The right of suffrage. 

114. The right of serving on juries, 

115. Congressional regulation of the election of senators and representa- 

tives. 

116. Personal and property rights. 

117. The rights within a state of citizens of other states. 

118. Foreign corporations. 

119. The XIII Amendment. 

120. The XIV Amendment. 

121. The police power. 

111. As Miller, J., pointed out in the judgment in 
tlie Slaughter House Cases,^ the Constitution, as 
originally adopted, did not define citizenship of the 
United States, although it did, by Section 2 of Article 
IV, provide that " the citizens of each state shall be 
entitled to all privileges and immunities of citizens in 
the several states," and, by Section 2 of Article I, 
declare citizenship of the United States to be a neces- 
sary qualification for election as a representative in 
Congress. In view of that which the Constitution said, 
and of that which it left unsaid, upon this subject, it 
might well be concluded that citizenship of the United 
States was dependent upon and only incident to citizen- 
ship of a state, but the point was never judicially 
determined. The 1st Section of the XIV Amendment 
declares, that " all persons born or naturalized in the 

1 16 Wall. 72. 

250 



CITIZENSHIP. 251 

United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the state wherein 
they reside." From and after the adoption of that 
amendment, therefore, the birth within the United 
States of a person subject to its jurisdiction, or the 
naturalization of an alien, makes the person so born, 
or naturalized, a citizen of the United States;^ and 
that right of citizenship is entitled to protection under 
such laws as Congress may enact in execution of the 
powers conferred by the XIV and XV Amendments. 
Section 8 of Article I of the Constitution authorizes 
Congress " to establish an uniform rule of naturaliza- 
tion." It is, therefore, beyond the power of any state 
to prescribe the conditions of naturalization, or to 
admit to citizenship any alien other than tbose whom 
the acts of Congress permit to be naturalized f never- 
theless aliens may be naturalized by jDroceedings in 
courts of the states in conformity with the acts of Con- 
gress.^ 

112. In Dred Scott v. Sandford,* the court deter- 
mined that a free negro could not be a citizen of a 
state, but, in his dissenting judgment, Curtis, J., 
showed that it was an historical fact, that in five of the 
thirteen original states negroes were not only recognized 
as citizens, but also admitted to the exercise of the 
right of suffrage, and that many acts of Congress had, 
by necessary implication, recognized negroes as citi- 
zens ; and the weight of authority supports the position, 
that each state may, so far as the Constitution of the 
United States does not restrain it, determine the status, 
and consequently the citizenship, of the persons 

1 The Slaughter House Cases, 16 Wall. 73 ; United States v. Cruikshank, 
92 U. S. 548. 

2 Chirac v. Chirac, 2 Wheat. 269 ; Dred Scott v. Sandford, 19 How. 405, 

3 Collet V. Collet, 2 Dall. 294. * 19 How. 393. 



252 EIGHTS OF PEKSON. 

domiciled within its territory.^ By the terms of the 
XIV Amendment, " all persons born or naturalized in 
the United States, and subject to the jurisdiction 
thereof, are citizens of the United States and of the 
state wherein they reside." Therefore birth, or natural- 
ization, in the United States, followed by residence 
within the territory of any state, makes the person so 
born, or naturalized, and so residing, a citizen of that 
state. 

113. All citizens are not necessarily entitled to the 
exercise of the right of suffrage, for the term " citizen," 
in the constitutional sense of the term, means one who 
owes the duty of allegiance and is entitled to the cor- 
relative right of protection, and it, therefore, includes 
persons, who, by reason of sex, or age, may not be 
qualified to vote. The right of suffrage is a subject of 
state regulation, and not a privilege, or immunity, of 
citizenship protected by the Constitution of the United 
States. A state may, therefore, without contravening 
any constitutional provision, deny the suffrage to women,^ 
but by force of the XV Amendment a state may not, in 
its limitations on the exercise of the right of suffrage, 
discriminate against citizens of the United States on 
account of their " race, colour, or previous condition of 
servitude." A state, therefore, cannot limit the right 
of suffrage to the white race.^ Nevertheless, the power 
of Congress to legislate for the protection of the rights 
conferred by that amendment being limited by the 
terms of the amendment, Congress cannot by statute 
provide for the punishment of state election officers for 
wrongfully refusing to receive the vote of a qualified 
voter at an election, when that refusal is not based upon 

^ Strader v. Graham, 10 How. 93 ; Holmes v. Jennison, 14 Pet. 540 ; Groves 
V. Slaughter, 15 id. 449; Prigg v. Pennsylvania, 16 id. 539. 

2 Minor v. Happersett, 21 Wall. 162. ^ Ex parte Yarbrough, 110 U. S. 665. 



REGULATION OF ELECTIOJSTS. 253 

a discrimination against the voter on account of his 
race, colour, or previous condition of servitude ; ^ nor 
can a conviction in a court of the United States be sus- 
tained under an indictment which charges the defendant 
in general terms with an intent to hinder and prevent 
citizens of the United States, of African descent, therein 
named, in the free exercise and enjoyment of the rights, 
privileges, immunities, and protection, granted and 
secured to them as citizens of the United States and of 
a state, without specifying any particular right, the en- 
joyment of which the conspirators intended to hinder 
or prevent.^ 

114. The right of serving as a juror being incident 
to citizenship, a state cannot so regulate the selection of 
jurors in its courts as to prevent citizens of African 
descent from serving as jurors.^ 

115. Section 4 of Article I of the Constitution de- 
clares that, "the times, places, and manner of holding 
elections for senators and representatives shall be pre- 
scribed in each state by the legislature thereof; but the 
Congress may, at any time, by law, make or alter such 
regulations, except as to the places of choosing senators." 
Under this clause of the Constitution, Congress without 
question provided for the election of its members by 
separate districts, composed of contiguous territory, and 
required the election in every district throughout the 
United States to be held on the Tuesday after the first 
Monday of November in every second year. In other 
respects, however, the exercise of power by Congress 
on this subject has been contested in the courts. In the 
several cases it has been held, that Congress, having a 
supervisory control over the election of its members, 

1 U. S. V. Eeese, 92 U. R. 214. ^ jj g_ ^_ Cruiksliank, 92 U. S 542. 

^ XV Amendment, Neal v. Delaware, 103 U. S. 307 ; Straiider v. West Vir- 
ginia, 100 U. S. 303 ; Virginia v. Rives, i6id 315 ; Ex parte Yirginisi, ibid. 339. 



254 EIGHTS OF PEESON. 

and being authorized to make regulations of its own, or 
to alter regulations made by any state, can by statute 
imjDose duties on state officers of election, punish the 
non -performance by such officersof their duties, whether 
imposed by laws of the state or by acts of Congress, and 
provide for the appointment of officers of the United 
States to execute the regulations as made by Congress 
or by the states/ It has also been held that Congress can, 
for the protection of the voters at congressional elections, 
punish acts of violence or intimidation, done in further- 
ance of a conspiracy to prevent a voter from exercising 
the franchise at such elections.^ 

116. The states retain full control over the personal 
and property rights of their citizens and of residents 
within their territory, subject to the restraints imposed 
by the Constitution.^ The states retain the power of 
regulating the tenure of real property within their 
respective limits, including the mode of its acquisition 
and transfer, the rules of its descent, and the extent to 
which a testamentary disposition may be made of such 
land by its owner, and a state may forbid the United 
States, by reason of its not being a corjooration created 
by the laws of that state, to take by devise lands within 



1 Ex 'parte Seibold, 100 U, S. 371 ; Ex parte Clarke, 100 U. S. 399. 

2 Ex parte Yarbrough, 110 U. S. 651. 

3 As Waite, C. J., said in Spies v. Illinois, 123 U. S. 166, " that the first ten 
articles of amendments were not intended to limit the powers of the state 
governments in respect to their own people, but to operate on the national 
government alone, was decided more than half a century ago, and that de- 
cision has been steadily adhered to since : Barron v. Baltimore, 7 Pet. 243, 
247; Livingston v. Moore, ibid. 469, 552; Fox v. Ohio, 5 How. 410, 434; 
Smith V. Maryland, 18 id. 71, 76 ; Withers v. Bucliley, 20 id. 84, 91 ; Pervear v. 
The Commonwealth, 5 Wall. 475, 479; Twitchellw. The Commonwealth, 7 id. 
321, 325 ; The Justices v. Murray, 9 id. 274, 278 ; Edwards v. Elliott, 21 id. 
532, 557 ; Walker v. Sauvinet, 92 U. S. 90 ; United States v. Cruikshank, ibid. 
542, 552; Pearson v. Yewdall, 95 id. 294, 296; Davidson v. New Orleans, 96 
id. 97, 101 ; Kelly v. Pittsburg, 104 id. 78 ; Presser v. Illinois, 116 id. 252, 
265." 



PKOPEBTY RIGHTS. 255 

the state.^ The states may legislate specially for the 
sale or investment of the estates of infants and other 
persons not sui juris.^ The shores of navigable waters, 
and the soil under those waters, were not granted by 
the Constitution to the United States, but were reserved 
to the riparian states respectively, and new states have 
the same rights, sovereignty, and jurisdiction over this 
subject as the original states.^ The United States 
having no proprietary titles to lands on the shore of a 
state, under navigable waters and below high-water 
mark, can grant no valid title thereto.* A state may, 
therefore, prohibit, or license under regulation, the 
taking of oysters and fish in the navigable waters within 
its limits.^ The states may determine what classes of 
persons shall come and remain within their territory," 
provided, of course, that they do not thereby impair 
the rights of intercourse and trafl&c secured by the Con- 
stitution to citizens of other states.^ The Constitution 
makes no provision for the protection of the citizens of 
the several states in their religious liberty, and imposes 
no restraints on the states in that respect. Therefore, 
a judgment of a state court imposing a fine upon a cler- 
gyman for violation of a municipal ordinance regulating 
the place and manner of conducting funeral services, is 
not subject to review in the Supreme Court of the United 
States.^ 

117. Section 2 of Article IV of the Constitution de- 

1 U. S. V. Fox, 94 U. S. 315. ^ Hoyt v. Sprague, 103 U. S. 613. 

^ Pollard V. Hagan, 3 How. 212 ; Webber v. Harbour Commissioners, IS 
Wall. 57. 

* Pollard V. Hagan, 3 How. 212; Goodtittle v. Kibbe, 9 id. 471 ; Doe v. 
Beebe, 13 id. 25. 

5 Smith V. Maryland, 18 How. 71 ; McCready v. Virginia, 94 U. S. 391. 

^ Holmes v. Jennison, 14 Pet. 540 ; Groves v. Slaughter, 15 kl. 449 ; Prigg v. 
Pennsylvania, 16 id. 539. 

^ Infra, See. 117. 

8 Permoli v. First Municipality, 3 How. 589. 



256 PRIVILEGES OF CITIZENS. 

clares that " the citizens of each state shall be entitled 
to all privileges and immunities of citizens in the several 
states." As Miller, J., said, in the Slaughter House 
Cases,^ the " sole purpose " of this constitutional pro- 
vision " was to declare to the several states, that what- 
ever those rights, as you grant or establish them to 
your own citizens, or as you limit, or qualify, or impose 
restrictions on their exercise, the same, neither more nor 
less, shall be the measure of *the rights of citizens of 
other states within your jurisdiction." Washington, 
J., said, in Corfield v. Coryell,^ the privileges and im- 
munities in question are those " which are fundamental, 
which belong of right to all citizens of all free govern- 
ments, and which have at all times been enjoyed by 
citizens of the several states which compose this Union, 
from the time of their becoming free, independent, and 
sovereign," including " protection by the government, 
with the right to acquire and possess property of every 
kind, and to pursue and obtain happiness and safety, 
subject, nevertheless, to such restraints as the govern- 
ment may prescribe for the general good of the whole." 
In Paul V. Virginia,^ Field, J., said, " the privileges 
and immunities secured to citizens of each state in the 
several states . . . are those privileges and im- 
munities which are common to the citizens in the latter 
states under their Constitutions and laws by virtue of 
their being citizens. Special privileges enjoyed by 
citizens in their own states are not secured in other 
states by this provision. It was not intended by the 
provision to give to the laws of one state any operation 
in other states. They can have no such operation, 
except by the permission, express or implied, of those 
states. The special privileges which they confer must, 
therefore, be enjoyed at home, unless the assent of 

1 16 Wall. 77. "" 4 Wash. C. C. 371. ^ 8 WaU. 180. 



PEIVILEGES OF CITIZENS. 257 

other states to their enjoyment therein be given." It 
is clear that this provision guarantees the privileges 
and immunities of citizens of other states, and has no 
reference to action by a state in respect to its own 
citizens ; ^ nor does this constitutional provision vest the 
citizens of one state with any interest in the com- 
mon property of citizens of another state. There- 
fore, a statute of a state by which other than its own 
citizens are prohibited from planting or taking oysters 
from the soil which is covered by the tide-waters of 
that state, is not a violation of any privilege or im- 
munity of citizenSj for, subject to the paramount right 
of navigation, the regulation of which in relation to 
foreign and interstate commerce has been granted to 
Congress by the Constitution, each state owns the soil 
of all tide-waters within its jurisdiction, and may ap- 
propriate them to be used by its citizens as a common 
for cultivating and taking fish, etc., if navigation be not 
thereby obstructed.^ Nor does this constitutional pro- 
vision require a state to confer upon citizens of other 
states peculiar privileges granted to its own citizens ; 
thus, the privilege of community of acquets or gains 
as between married persons in Louisiana, as regards 
lands in Louisiana acquired by a citizen of Mississippi, 
who, while living in that state has married a woman 
born in Louisiana, cannot be claimed as a constitutional 
right, for the wife by her marriage became a citizen of 
Mississippi.^ On the same principle, a state may enact 

1 Bradwell v. State, 16 Wall. 130. ^ McCready v. Virginia, 94 U. S. 391. 

^ Conner v. Elliott, 18 How. 593 ; Curtis, J., said, " we do not deem it need- 
ful to attempt to define the word 'privileges' in the clause of the Constitu- 
tion. It is safer and more in accordance with the duty of a judicial tribunal, 
to leave its meaning to be determined in each case, upon a view of the par- 
ticular rights asserted and denied therein, and especially is this true, when 
we are dealing with so broad a provision, involving matters not only of great 
delicacy and importance, but which are of such a character that any merely 
abstract definition could scarcely be correct ; and a failure to make it so would 
17 



258 FOEEIGN COEPOEATIONS. 

a statute of limitations, discriminating, as regards suits 
against non-resident defendants, against creditors, if 
citizens of other states, and in favour of creditors who 
are citizens of the state.^ On the other hand a state 
cannot, without contravening this constitutional pro- 
vision, so discriminate by taxation against either the 
natural products of, or the goods manufactured in, 
another state, as to hinder the citizens of that other 
state in their exercise of the rights of freely transport- 
ing and selling their goods manufactured or unmanu- 
factured.^ Nor can a state by taxation, or otherwise, 
restrict the exercise by the citizens of other states of 
their right of free transit from place to place within 
the United States, in order to approach the seat of 
'government of the United States and the federal offices 
in the various states.^ 

118. Foreign corporations are, in the states of the 
United States, corporations created by any other state, 
or by a foreign government. A joint stock partnership 
organized under the laws of a foreign country, with a 
statutory recognition of the distinctive entity of the 

certainly produce mischief." In McCready v. Virginia, 94 U. S. 375, Waite, 
C. J., after referring to the view thus expressed by Curtis, J., added, "this 
clearly is the safer course to pursue." These dicta, of course, mean only that 
in the decision of a cause, the court ought to confine themselves to the case at 
bar and ought not to so generalize as to prejudge cases that have not yet 
arisen for determination, but they do not mean that the court, in order to 
arrive at a decision should reason empirically, and should avoid a clear state- 
ment of the general principles whose application must necessarily determine 
the particular case. If they did mean that, they would establish a '' rule " 
which is not " salutary," and they would lay down a " course " which is not 
the " safer " one to pursue. 

1 Chemung Canal Bank v. Lowery, 93 U. S. 72 ; Strong, J., dissented. 

2 Ward V. Maryland, 12 Wall. 418 ; Welton v. Missouri, 91 U. S. 275 ; 
Webber V. Virginia, 103 id. 344; Guy v. Baltimore, 100 id. 434; Corson i). 
Maryland, 120 id. 502; Bobbins v. Shelby County, ibid. 489; Walling v. 
Michigan, 116 id. 446 ; sed cf. Hinson v. Lott, 8 Wall. 148 ; Machine Co. v. 
Gage, 100 U. S. 676 ; Tiernan v. Einker, 102 id. 123 ; Downham v. Alexandria 
Council, 10 Wall. 173. 

3 Crandall v. Nevada, 6 Wall. 35. 



FOEEIGN COKPORATIONS. 259 

association and with powers of transfer of sliares and 
succession of members, and the right to sue and be sued 
as an aggregation, is regarded in the United States as a 
foreign corporation.^ A corporation is not, in its cor- 
porate capacity, a citizen, within the meaning of the 
Constitution.^ It, therefore, cannot, when the juris- 
diction of the court is dependent on the citizenship of 
the parties, sue " the citizen of a state, other than that 
by which it was chartered, unless the persons who com- 
pose the corporate body are all citizens of that state,*' 
but it may in such a case sue in its corporate name, 
averring that its members are citizens of the state in- 
corporating it,^ and, for purposes of jurisdiction, there 
is a conclusive presumption of law that the members of 
a corporation are citizens of the state creating it.^ A 
foreign corporation is not a citizen within the meaning 
of Section 2 of Art. IV of the Constitution, which 
declares that "the citizens of each state shall be en- 
titled to all privileges and immunities of citizens in the 
several states." ^ While corporations are, so far as regards 
the legislation of the state creating them, persons to be 
protected within the meaning of the XIY Amendment,^ 
a corporation chartered by one state is not, within the 
meaning of that amendment, a " person " within the 
jurisdiction of a state, denying to it "the equal pro- 
tection of the law " by the discriminating conditions on 
which it is permitted to do business in the state.'^ A 

^ Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566. 

2 The Bank of the United States v. Deveaux, 5 Cr. 61 ; Paul v. Virginia, 8 
"Wall. 168. 

3 The Bank of the U. S. v. Deveaux, 5 Cr. 61. 

* L. C. & C. E, E. V. Letson, 2 How. 497 ; Marshall v. B. &0. E. E., 16 id. 
314; C. D. Co. v. Shepherd, 20 id. 232 ; O. & M. E. E. v. Wheeler, 1 Bl. 286 ; 
Express Co. v. Kountze, 8 Wall. 342 ; E. E. v. AVhitton, 13 Wall. 277. 

5 Paul V. Virginia, 8 Wall. 168. 

6 Santa Clara County i-. S. P. E. E., 118 U. S. 394, 396. 
' Phila. Fire Association v. New York, 119 U. S. 110. 



260 FOREIGN COEPOEATIOKS. 

corporation exists only in contemplation of law and by 
force of law, and it can have no legal existence beyond 
the bounds of the sovereignty creating it, unless it be, 
by comity, permitted to exist within the bounds of some 
other sovereignty.^ A corporation, therefore, cannot 
exercise, in any other sovereignty within whose bounds 
it may be by comity permitted to act, any power which 
its charter does not authorize it to exercise,^ nor can it 
exercise therein any power the exercise of which is not, 
either expressly or impliedly, permitted by the laws of 
the sovereignty within whose bounds it is exercised, 
saving rights, if any, secured to the corporation by the 
Constitution of the United States.^ Of course, if there 
be no prohibitory legislation, it is not competent for an 
individual citizen, not personally interested in the cor- 
poration, to object to the doing of business within a 
state by a foreign corporation.* Unless the local law 
prohibit, a foreign corporation, if its charter so autho- 
rizes, may sue and be sued in the courts of a state,* 
make contracts,*^ acquire and hold real estate,^ buy 
and sell bills of exchange,^ and negotiate and issue 
policies of life and fire insurance.^ Corporations, by 

1 The Bank of Augusta v. Earle, 13 Pet. 512 ; O. & M. E. E. v. Wheeler, 1 
Bl. 286 ; Eunyan v. Coster, 14 Pet. 112. 

2 Eunyan v. Coster, 14 Pet. 112, 130 ; Bank of Augusta v. Earle, 13 Pet. 519„ 
587. 

3 Eunyan v. Coster, 14 Pet. 122, 130. 

* Waite, C. J., said, in P. T. Co. v. W. U.T. Co., 96 U. S. 1, 13, "no citizen 
of a state can enjoin a foreign corporation from pursuing its business. Until 
the state acts in its sovereign capacity, individual citizens cannot complain. 
The state must determine for itself when the public good requires that its 
implied assent to the admission shall be withdrawn." 

^ Bank of Augusta v. Earle, 13 Pet. 519, 587 ; Cowles v. Mercer County, 7 
Wall. 118. 

6 Bank of Augusta v. Earle, 13 Pet. 519, 591 ; Eunyan v. Coster, 14 id. 122, 129. 

^ Eunyan v. Coster, 14 Pet. 122. » Bank of Augusta v. Earle, 13 Pet. 519. 

3 Paul V. Virginia, 8 Wall. 168 ; Ducat v. Chicago, 10 id. 410 ; Liverpool 
Ins. Co.i). Massachusetts, ibid. 566; Phila. Fire Association v. New York, 119? 
U. S. 110 



FOEEIGN CORPORATIONS. 261 

doing business within the bounds of a sovereignty, other 
than that which has created them, do not become cor- 
porations of that other sovereignty, nor lose privileges, 
which are incident to their citizenship in the sovereignty 
which created them. Therefore, a railway corporation 
of Maryland does not, by becoming lessee of a railway 
in Virginia, forfeit its right to remove into the Circuit 
Court of the United States a suit brought against it in 
the courts of Virginia by a citizen of that state.^ A 
state may discriminate in favour of its own corporations 
and against foreign corporations ; ^ it may tax foreign 
corporations,^ it may arbitrarily refuse to foreign cor- 
porations permission to do business within its territory, 
or it may give its consent on any conditions which " are 
not repugnant to the Constitution or laws of the United 
States, nor inconsistent with those rules of public law 
which secure the jurisdiction and authority of each 
state from encroachment by all others, or that principle 
of natural justice which forbids condemnation without 
opportunity for defense;"* it may impose on a foreign 
corporation a condition that service of process on the resi- 
dent agent representative of the corporation on reason- 
able notice shall be considered a service upon the corpora- 
tion,^ and it may prohibit the transaction of the business 
of insurance within its bounds by a foreign corporation, 
or it may impose in its discretion conditions on the 
performance of such business, for contracts of insur- 
ance being covenants for indemnity and not articles of 
commerce, the negotiation and issue of policies of insur- 

1 B. & O. R. R. V. Koontz, 104 IT. S. 5. 

2 Paul V. Virginia, 8 Wall. 168 ; Ducat v. Chicago, 10 id. 410. 

^ Paul V. Virginia, 8 Wall. 168 ; Ducat v. Chicago, 10 id. 410 ; Liverpool 
Ins. Co. V. Massachusetts, ibid. 566. 

* L. Ins. Co. V. French, 18 How. 404, 407 ; St. Clair v. Cox, 106 U. S. 350, 
556 ; Paul v. Virginia, 8 Wall. 168. 

5 L. Ins. Co. V. French, 18 How. 404 ; St. Clair v. Cox, 106 U. S. 350, 356. 



262 FOREIGN COEPORATIONS. 

ance are not transactions of foreign or interstate com- 
merce.^ But a state cannot rightfully impose as a 
condition the non-exercise by a corporation of its right 
of removing to the courts of the United States actions 
brought against it in the courts of the state.^ If, how- 
ever, a state prohibit a foreign corporation from doing 
business within its bounds, because the corporation will 
not forego the exercise of its right of removal of actions, 
the corporation cannot be protected by an injunction 
issued by the courts of the United States;^ and a state 
statute, requiring foreign corporations as a condition of 
doing business in a state to stipulate that they \\ ill not re- 
move into the courts of the United States, causes which 
under the laws of the United States they would be entitled 
to remove, is void, because it makes the right of doing 
business in the state dependent on the surrender by the 
foreign corporation of a right secured to it by the 
Constitution and laws of the United States ;^ and a 
servant of the corporation^ cannot be convicted for 
doing business for a corporation which had not complied 
with the statute.^ A substantial compliance by a 
foreign corporation with the condition on which it is 
permitted to do business within the bounds of another 
sovereignty is sufficient ; thus, the law of Colorado requir- 
ing the filing of a certificate " designating the principal 
place where the business of such corporation shall 

1 Paul ?;. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 id 410; Liverpool 
Ins. Go.v. Massachusetts, i5id. 566; Phila. Fire Association v. New York, 119 
U. S. 110. 

2 Ins. Co. V. Morse, 20 Wall. 445 ; Doyle v. C. Ins. Co., 94 U. S. 535. 
» Doyle V. C. Ins. Co., 94 U. S. 535. 

* Home Ins. Co. v. Morse, 20 Wall. 445, followed ; Doyle v. C. Ins. Co., 94 
U. S. 535, explained to decide only that a court of the United States could 
not enjoin the arbitrary revocation by officers of a state of a license previously 
granted to a foreign corporation. 

^ In this case an engine driver of a foreign railway corporation. 

« Barron v. Burnside, 121 U. S. 186. 



FOEEIGN COEPORATIONS. 263 

be carried on in this state, and an authorized agent or 
agents, residing at its principal place of business, upon 
whom process may be served," is sufficiently complied 
with by a certificate naming the town in which the 
business is to be carried on and stating " that the 
general manager of said corporation residing at the 
said principal place of business, is the agent upon 
whom process may be served," but not giving the name 
of the general maoager.^ A foreign corporation does 
not, by doing a single act of business in another state, 
as for instance, by contracting to sell machinery, come 
within the provisions of a statute of that state forbid- 
ding foreign corporations to " do any business " within 
the state.^ Every one who deals with a foreign corpo- 
ration impliedly subjects himself to the laws of the 
foreign government which chartered the corporation, 
so far as those laws affect the powers and obligations of 
the corporation or the validity, enforcement, or dis- 
charge of its contracts ; thus, for instance, a holder iu 
the United States of bonds, issued by a railway cor- 
poration of Canada, but negotiated, and stipulated to be 
paid, in the United States, is bound by the terms of a 
statutory scheme of arrangement enacted by the Par- 
liament of Canada subsequently to the issue and sale 
of the bonds.^ On the same principle, a holder in 
Louisiana of a policy of life insurance issued in that 
state by a Missouri corporation is chargeable with 
notice of the insurance laws of Missouri substituting 
the insurance commissioner of that state as the repre- 
sentative of insolvent insurance companies.'* 

119. The XIII Amendment declares that "neither 
slavery nor involuntary servitude except as a punish- 

1 Goodwin v. C. M. Tns. Co., 110 U. S. 1. 
• 2 Cooper Manfg. Co. v. Ferguson, 113 U. S. 727. 
3 C. S. Ey. V. Gebhard, 109 U. S. 527. * Eelfe v. Eundle, 103 U. S. 222. 



264 XIII AMENDMET^T. 

ment for crime, whereof tlie party shall have been 
duly convicted, shall exist within the United States 
or any place subject to their jurisdiction," and that 
"Congress shall have power to enforce this article by 
appropriate legislation," and being intended to abolish 
involuntary slavery in all its forms, the word " servi- 
tude " is used therein with that signification, and is not 
to be construed to be a constructive prohibition of the 
creation of monopolies by a state, such as the exclusive 
right of providing a place for the slaughtering of cattle.^ 
Nor does the amendment warrant congressional legisla- 
tion declaring it to be a crime to conspire to deprive 
others of the equal protection of the laws.^ The amend- 
ment invalidates an express warranty made in March, 
1861, upon the sale of a slave warranting the chattel sold 
to be a slave for life and the warrantor's title to him to be 
clear and perfect. The warrantor's title having been 
divested under the operation of the amendment by vis 
major, he can recover on a note given for the price of 
the slave ;^ and a promissory note made before the 
adoption of the XIII Amendment, the consideration 
for which note was the price of a slave, is enforcible 
after the adoption of that amendment, slavery having 
been lawful by the lex loci contractus at the time the 
note was given. ^ 

120. The XIV Amendment declares, that " no state 
shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States ; 
nor shall any state deprive any person of life, liberty, 
or property, without due process of law, nor deny to any 
person within its jurisdiction the equal protection of 
the laws." The purposes of the XIV Amendment are 

^ Slaughter House Cases, 16 Wall. 36. 

2 United States v. Harris, 106 U. S. 629. 

3 Osborne v. Nicholson, 13 Wall. 654. 

* White V. Hart, 13 Wall. 646 ; Bojce v. Tabb, 18 Wall. 546. 



XIV AMENDMENT. 265 

to define citizensliip of the United States and of the 
states, to confer citizenship^ upon negroes, and to protect 
ao-ainst hostile les-islation of the several states thos.e 
privileges and immunities of citizenship which are com- 
mon to citizens of the United States,^ and the amend- 
ment extends its protection to all natural persons within 
the territorial jurisdiction of the United States, without 
regard to difference of race, colour, nationality, or citi- 
zenship,^ and, within any state, to corporations created 
by that state,^ but not to corporations created by other 
states.* The rights of citizenship which are pro- 
tected by the amendment being those which are common 
to the citizens of the United States, it does not confer 
the right of suffrage on women, for the right of suffrage 
is not necessarily a privilege or immunity of citizenship ;^ 
nor does it confer upon women the right to practice law 
in the state courts.^ Nor does the amendment interfere 
with a state's exercise of the police power."^ A state 
may, notwithstanding the amendment, prohibit a white 
and a negro from living together in adultery or forni- 
cation under more severe penalties than those to which 
the parties would be subjected were they of the same 
race and colour, for there is in such legislation no dis- 
crimination against any persons of a particular race or 
colour, but only a discrimination against the designated 
offense.^ A purchaser of premises, under and subject 
to a legally defective mortgage, cannot complain of an 
act validating the mortgage on the ground that it de- 
prives him of property without due process of law.^ 

1 The Slaughter House Cases, 16 Wall. 36. 

2 Yick Wo V. Hopkins ; Wo Lee v. Hopkins, 118 U. S. 356. 

3 Santa Clara County v. S. P. R. R, 118 U. S. 394, 396. 

* Philadelphia Fire Association v. New York, 119 U. S. 110. 

^ Minor v. Happerset, 21 Wall. 163. 

« Bradwell v. The State, 16 Wall. 130. 

•' Infra Sec. 121. ^ Pace v. Alabama, 106 U. S. 583. 

■8 Gross V. U. S. Mortgage Co., 108 U. S.477. 



266 THE POLICE POWEE. 

The power of enforcement by appropriate legislation 
vested by the amendment in Congress, does not author- 
ize congressional legislation with regard to individuals, 
for the amendment restrains state and not individual 
action ; it has, therefore, been held that Section 5519, 
Revised Statutes of the United States, declaring it to 
be a crime punishable by fine and imprisonment for 
any two or more persons to conspire to deprive any 
person of the equal protection of the law is unconsti- 
tutional.^ It has also been held that the Civil Eights 
legislation of Congress^ declaring that all persons 
within the jurisdiction of the United States shall be 
entitled to the full and equal enjoyment of inns, trans- 
portation facilities, etc., and subjecting to fi.ne and 
imprisonment, and also to a liability to damages in an 
action at law, any person violating the provisions of 
the statute, is unauthorized by the amendment, the 
ground of decision being that the amendment is pro- 
hibitory of state legislation and action, and that, there- 
fore, it is not in the power of Congress to directly 
legislate for the protection of individual rights against 
wrong doing by individuals.^ 

121. The police power is that function of govern- 
ment, by the exercise of which, all persons, who are 
subject to the sovereignty of the government exercising 
the power, are, for ends of public policy, restrained in 
their use or enjoyment of some right of person or 
of property. The police power may attain its end by 
absolutely prohibiting the exercise of a particular 
right, or by so regulating the exercise of that right as 
to permit its use under conditions, and, if the power 
exists, the extent to which it may be exercised in any 
case is limited only by the will of the government, or 

1 United States v. Harris, 106 U. S. 629. 

? Act 1 March, 1875, 18 Stat. 335. ^ Civil Eights Cases, 109 U. S. 3. 



FEDEKAL POLICE POWEK. 267 

the department thereof, in which the power may be 
vested, unless further restraint be imposed by the state 
Constitution. It is clear that the relation between the 
United States and the states forbids the United States 
to exercise within the territory of a state any portion 
of the police power. Thus in United States v. DeWitt,^ 
the facts were, that Congress, by the statute of 2 
March, 1867,^ having made it a misdemeanour to offer 
for sale illuminating fluid inflammable at less than a 
specified temperature, and DeWitt, having been 
indicted and convicted under that statute in a court of 
the United States, it being proven that the offense had 
been committed at Detroit in the state of Michigan, 
and the cause having been certified on a division of 
opinion between the judges of the court of the first 
instance, the court held that the statute, as a police 
regulation relating exclusively to internal trade, could 
have no constitutional operation within state limits, and 
could only have effect in the territories and in the 
District of Columbia. There are many cases in which 
the exercise of the police power by the states has been 
sustained by the court. It has been held, that a state 
may require, under a penalty, the master of every pas- 
senger-carrying vessel, on arriving at any port within 
the state, to report to the state authorities the 
name, place of birth, last legal settlement, age, and 
occupation of every passenger;^ that a state may 
prohibit or restrain the sale of wines, or liquors, 
imported from foreign countries, or brought within 
its territory from another state, or manufactured 
within the state ;^ that a state may regulate the 

1 9 Wall. 41. ' 14 Stat. 484. 

3 New Yorkw. Miln, 11 Pet. 102. 

* The License Cases, 5 How 504; Bartemeyer r. Iowa, IS Wall. 129 ; Beer 
Co. V. Massachusetts, 97 U. S. 25 ; Foster v. Kansas, 112 U. S. 201 : Mugler v. 
Kansas, 123 U. S. 623. 



268 STATE POLICE POWEK. 

-exercise of rights of fishing in its navigable 
waters ; ^ that a state may so regulate the operation 
of draw-bridges over navigable waters, tliat the traffic 
on the water and the traffic on the land shall be so con- 
ducted as to interfere as little as possible with each 
other ;^ that a state may grant, and control the exer- 
cise of, ferry licenses ; ^ that a state may establish port 
regulations, prescribing where a vessel may lie in har- 
bour, how long she may remain there, and what lights 
she must show at night ; * that a state may regulate the 
rates charged by a private warehouse for the storage of 
grain, notwithstandingthe fact thatgrainbe stored therein 
in course of interstate transportation ; ^ that a state may 
regulate the rates of fares and freight charged by rail- 
ways in interstate transportation ; "^ that a state may 
forbid, under a penalty, the driving of an engine on a 
railway within its limits, by one who has not been 
licensed by a state Board of Examiners, even though 
the engine-driver be engaged in moving passengers or 
freight between points within and points without the 
state ; "^ that a state may require a railway to maintain 
fences and cattle guards, and, in default thereof, be 
liable for double damages ; ^ that a state may autho- 
rize a municipality to forbid the use of steam-power by 
railways within its municipal limits ; '^ that a state may 

1 Smith V. Maryland, 18 How. 71 ; McCready v. Virginia, 94 U. S. 391. 

2 Escanaba Co. v. Chicago, 107 U. S. 678. 

^ Fanning v. Gregoire, 16 How. 524, 534; Conway ?;. Taylor, 1 Bl. 603. 

* The James Gray r. The John Frazer, 21 How. 184. 

5 Munn V. Illinois, 94 U. S. 113. 

« Eailway Co. v. Fuller, 17 Wall. 560 ; C, B. & Q. K. E. v. Iowa, 94 U. S. 
155 ; Peik v. C. & N. W. Ky., ihid. 164 ; Sed cf. W. St. L. & P. Ey. v. Illinois, 
118 id. 557, wherein Miller, J., said that in Munn v. Illinois, C, B. & Q. E. E. 
V. Iowa, and Peik v. C. & N. W. Ey., the question of the exclusive power of 
Congress to regulate interstate transportation charges, though presented, "re- 
ceived but little attention at the hands of the court." 

' Smith V. Alabama, 124 U. S. 465. « j^^ p^ jj^^ ^^ Humes, 115 U. S. 512. 

3 E. E. Co. V. Eichmond, 96 U. S. 531. 



STATE POLICE POWEE. 269 

forbid washing and ironing in public laundries within 
definite limits and between prescribed hours ; ^ that a 
state may regulate the organizing, drilling, and parading 
of military bodies, provided that such legislation does 
not interfere with the privileges granted by the militia 
laws of the United States ; ^ and that a state may grant 
a monopoly of the slaughtering of cattle.^ It has also 
been held, that a contract cannot be made by a charter, 
binding the state to exempt the corj^orate franchises and 
property from the operation of the police j)Ower of the 
state.^ It has also been held that a license granted on 
payment of a fee by the United States under the In- 
ternal Kevenue Statutes to carry on the business of a 
wholesale liquor dealer in a state, does not authorize 
the licensee to carry on the business in violation of 
laws of the state prohibiting the traffic;^ nor does it 
exempt the licensee from state taxation on the business 
so conducted;*' and that letters patent granted for an 
invention do not confer upon the patentee the right of 
selling the patented article, within the territory of a 
state, in violation of a police regulation of the stateJ 
On the other hand, reference may be made to the 
dictum of Marshall, C. J., in Brown v. Maryland,^ 

1 Barbier v. Connelly, 113 U. S. 27; Soon Hing v. Crowley, ibid. 703. But 
a state may not, under pretence of regulating public laundries, vest in a mu- 
nicipality an authority arbitrarily and without the exercise of discretion, to 
grant or refuse permission to conduct a laundry : Yick Wo v. Hopkins ; V7o 
Lee t). Hopkins, 118 U. S. 356. 

2 Presser v. Illinois, 116 U. S. 252. 

3 Slaughter House Cases, 16 Wall. 36 ; Butchers' Union v. C. C. Co., Ill 
U. S. 746. 

* C, B. & Q. E. E. V. Iowa, 94 U. S. 155 ; Euggles v. Illinois, 108 id. 526 ; M. 
H. & N. E. E. V. Hamersly, 104 id. 1 ; S.V. Water Co. v. Schottler, 110 id. 347 ; 
Beer Co. v. Massachusetts, 97 id. 25 ; Boyd v. Alabama, 94 id. 645 ; Stone v. 
Mississippi, 100 id. 814 ; Fertilizing Co. v, Hyde Park, 97 id. 659 ; Butchers' 
Union v. Crescent City Co., Ill id. 746. 

^ McGuire v. The Commonwealth, 3 Wall. 387. 

^ Pervear v. The Commonwealth, 5 Wall. 475. 

' Patterson v. Kentucky, 97 U. S. 501. » 12 Wheat. 447. 



270 STATE POLICE POWEK. 

where he said, with regard to the right of the states to 
control the sale of imported goods, " sale is the object 
of importation, and is an essential ingredient of that 
intercourse of which importation constitutes a part. It 
is as essential an ingredient, as indispensable to the 
existence of the entire thing, then, as importation itself. 
It must be considered as a component part of the power 
to regulate commerce. Congress has a right, not only 
to authorize importation, but to authorize the importer 
to sell." There are later cases, which seem to fall 
within the line of that dictum. In Sinnot v. Daven- 
port ^ and in Foster v. Davenport,^ it was held that a 
state cannot require the owners of vessels licensed as 
coasters by the United States to file with the authorities 
of a state port a statement in writing of the name of the 
vessel, the names of its owners, their places of residence, 
and the amount of their respective interests in the 
vessel, as conditions prerequisite to the navigation 
of the waters of the state by such vessels. In Hall v. 
De Cuir ^ it was held that a state cannot by statute re- 
quire "those engaged in the transportation of pas- 
sengers among the states to give to all persons traveling, 
within that state, upon vessels employed in such busi- 
ness, equal rights and privileges in all parts of the 
vessel, without distinction of race and colour," nor sub- 
ject " to an action for damages the owner of such a 
vessel, who excludes coloured passengers, on account 
of their colour., from the cabin set apart for the use 
of whites during the passage." In R. R. v. Husen,^ 
it was held, that a state cannot prohibit the driving of 
certain species of cattle into the state during a specified 
portion of the year, nor permit the transportation of 
such cattle through the state at any other time of year 

1 22 How. 227. ^ 95 U. S. 485. 

2 22 How. 244. * 95 U. S. 465. 



STATE POLICE POWER. 271 

upon condition that the traus]3orting agent " shall be 
responsible for all damages which may result from the 
disease called the Spanish or Texan fever, should the 
same occur along the line of transportation." In W. 
St. L. & P. Ry. V. Illinois/ it was held that a state 
cannot "regulate the charges by railroad companies 
within its limits for a transportation which constitutes 
a part of commerce among the states."^ In Bowman 
'V. C. & N. W. Ry.,^ it was held, that a state cannot 
forbid a common carrier to bring into the state from 
another state intoxicating liquors, when the laws of the 
state forbid the sale of such liquors by unlicensed 
persons, nor does such state legislation relieve a common 
carrier from liability in damages to an unlicensed con- 
signee, who has been injured by the refusal to transport 
such liquors. It is not easy to reconcile the cases. If 
the question were to be considered upon principle, and 
apart from authority, it might be said upon the one 
side, that the autonomy of the states is nothing more 
than a name if they are not to be permitted to exercise 
for the protection of the lives, health, and comfort of 
their citizens the ordinary police powers of govern- 
ment ; and that the constitutional grant to the govern- 
ment of the United States of any power which in its 
exercise may affect the internal concerns of a state 
must be understood to have been granted on the im- 
plied condition that its exercise is to be subject to the 
police power of the state. In reply to this it might 
be said, upon the other side, that, as the power of 
police involves a power not only to control, but also to 

'■ 118 U. S. 557. The facts in this case are stated in full, supra, pp. 128 
€t seq. 

^ This case was decided before the enactment of the Interstate Commerce 
Act. 

^ To be reported in 125 U. S., and in which cause judgment was entered on 
19 March, 1888. 



272 STATE POLICE POWER. 

forbid, the constitutional powers granted to the govern- 
ment of the United States would be nugatory if the 
government of the state might veto, under the pretense 
of regulating. Perhaps the rule deducible from the 
cases is, that, while each state did not, by the adoption 
of the Constitution, surrender its ordinary local powers 
of self-government operative upon all persons and 
property which exist, or may come, within its territory^ 
and which merge in the mass of persons and property 
subject to its jurisdiction, yet, nevertheless, the terri- 
torial limits of each state's jurisdiction, the grant to the 
government of the United States of powers conflicting 
with state sovereignty, and a due regard to the rights 
of citizens of other states, must be held to limit the 
exercise by each state of its otherwise illimitable 
powers of police, by the restriction that those powers 
are not to be so exercised as to interfere with the full 
execution of the powers granted to the United States. 
If this be the rule, persons or property brought within 
the territory of a state by the exercise of any federal 
power, must be exempted from obstructive state control 
until the federal power has ceased to operate, and the 
persons, or property, on which it acted, have merged in 
the mass of persons, or property, within the territory of 
the state. On the same principle, federal agencies are 
exempted from any such state regulation, as hinders the 
agent in the full performance of his, or its, duty to the 
government of the United States. Of course. Congress 
may so legislate with regard to any subject-matter of 
federal regulation, as it has heretofore legislated with 
regard to Quarantine and Pilotage,^ that the states may 
be enabled to rightfully regulate that which would 
otherwise be exempt from their control. 

^ Supra, Sections 46 and 47. 



CHAPTEK XII. 

THE FEDERAL SUPREMACY AND THE RESERVED RIGHTS 
OF THE STATES, 

122. The constitutional declaration of the federal supremacy. 

123. The supremacy of the Constitution. 

124. The supremacy of the acts of Congress. 

125. The supremacy of treaties. 

126. The results of federal supremacy. 

127. The constitutional reservation of the rights of the states. 

128. The nature and extent of those reserved rights. 

129. The importance of the preservation of the rights of the states. 

122. Section 2 of Article VI of the Constitution 
declares, that " this Constitution, and the laws of the 
United States which shall be made in pursuance 
thereof, and all treaties made, or which shall be made 
under the authority of the United States, shall be the 
supreme law of the land ; and the judges in every state 
shall be bound thereby, anything in . the Constitution 
or laws of any state to the contrary notwithstanding." 
The supreme authority is, therefore, j^rs^, the Constitu- 
tion ; second, the laws of the United States made in 
pursuance thereof; and third, treaties duly made under 
the authority of the United States. 

123. The Constitution is the Constitution as origin- 
ally ratified, and as subsequently amended in the 
manner and under the restrictions contained in the V 
Article thereof, and as construed by the executive 
department of the government, so far as regards execu- 
tive action, and by the legislative department of the 
government so far as regards legislative action, and by 
the judicial department of the government so far as 

18 273 



274 SUPKEMACY OF LAWS. 

regards all rights and privileges whicli may properly 
become subjects of judicial determination. As the 
three departments oi" the government of the United 
States are co-ordinate in authority, and as they are 
alike bound to obey the Constitution as a paramount 
rule of action, it follows that each must determine for 
itself, so far as regards its action in the performance of 
the duties delegated to it by the Constitution, what 
the proper construction of that instrument is. 

124. The supremacy of any statute of the United 
States is dependent upon its constitutionality,^ but an 
act of Congress will not, on slight implication, or 
vague conjecture, be judicially determined to be in 
conflict with the Constitution, for the presumption is 
always in favour of the constitutionality of a law.^ 
Statutes, which are constitutional in part only, will be 
upheld by the court so far as they are not in conflict 
with the Constitution, provided that their constitutional, 
and their unconstitutional, parts be severable;^ but 
when the unconstitutional parts of such a statute are 
so connected with its general scope, that, should they 
be stricken out, eflect cannot be given to the legislative 
intent, the other provisions of the statute must fall 
with them.* 

125. In the order of supremacy, treaties, duly rati- 
fied, are of inferior authority to the Constitution, and 
to constitutional acts of Congress,^ but they are of 

1 Marbury v. Madison, 1 Cr. 137 ; Norton v. Shelby County, 118 U. S. 442. 

2 Fletcher v. Peck, 6 Cr. 87 ; The Legal Tender Cases, 12 Wall. 531 ; U. 
S. V. Harris, 106 U. S. 629. 

•■' Packet Co. v. Keokuk, 95 U. S. 97. 

* Allen V. Louisiana, 103 U. S. 80 ; Spraigue v. Thompson, 118 id. 90 ; U, 
S. V. Harris, 106 U. S. 629 ; The Virginia Coupon Cases, 114 id. 289, 305 
Baldwin v. Franks, 120 U. S. 678, 685 ; The Trade-Mark Cases, 100 U. S. 82, 

5 The Cherokee Tobacco, 11 Wall. 616 ; Foster v. Neilson, 2 Pet. 253, 314 
The Head Money Cases, 112 U. S. 580; Baldwin v. Franks, 120 id. 678, 703; 
U. S. V. McBratney, 104 id. 621, 623. 



SUPKEMACY OF TREATIES. 275 

superior authority to state legislation,^ and where a 
treaty declares the rights and privileges, which the 
citizens or subjects of a foreign nation may enjoy in the 
United States, it, in general, operates by its own force, 
and does not require the aid of 'any congressional 
enactment.^ While, as respects the rights and obliga- 
tions of the contracting governments, a treaty is to be 
regarded as concluded and binding from the date of its 
signature,^ yet as respects the effects of the treaty on the 
rio;hts of citizens of the United States vested before the 
ratification of the treaty but subsequently to its signa- 
ture, the treaty is not to be considered as a part of the 
supreme law of the land until after its ratifications have 
been exchanged, for the Senate may in process of ratifi- 
cation amend the treaty,^ and it cannot be known, until 
it be ratified, what it may command or prohibit.^ Treaties 
do not, unless they be in express terms retroactive, 
affect rights vested, or liabilities incurred, before their 
ratification.^ 

126. A consideration of the cases which have been 
cited in the preceding chapters of this book leads to the 
conclusion that the supremacy of the government of the 
United States, within its constitutional sphere of action, 
involves : first, the exercise of judicial power by the 
government of the United States for the purposes of 
enforcing the rights created by the Constitution, laws, 

1 U. S. V. 43 Gallons of Whiskey, 93 U. S. 188 ; Hauenstein v. Lynham, 100 
id. 483. 

2 Chirac v. Chirac, 2 Wheat. 259 ; Carneal v. Banks, 10 id. 181 ; Hughes v. 
Edwards, 9 id. 489, 496 ; Hauenstein v. Lynham, 100 U. S. 483 ; sed cf. Bald- 
win V. Franks, 120 U. S. 678. 

^ Dana's Wheaton's International Law, 36. 

* Art. 11, Section 2, of the Constitution requires the advice and consent of 
the Senate, and the concurrence of two-thirds of the Senators present, to the 
making of any treaty by the President. 

5 U. S. V. Arredondo, 6 Pet. 691, 749 ; Haver v. Yaker, 9 Wall. 32. 

® Prevost V. Greneaus, 19 How. 1 ; Frederickson v. Louisiana, 23 How. 445. 



276 EESERVED EIGHTS OF STATES. 

aad treaties of the United States, of punishing offenses 
against the laws of that government, and of finally de- 
termining the judicial construction of the Constitution, 
statutes, and treaties of the United States ; second, the 
exemption of all property and agencies of the federal 
government from state control; and third, the non- 
exercise by the states of powers clashing with the 
powers granted by the Constitution to the government 
of the United States. 

127. Articles IX and X of the Amendments to the 
Constitution declare that, "the enumeration in the Con- 
stitution of certain rights shall not be construed to deny 
or disparage others retained by the people." . . . "The 
powers not delegated to the United States by the Con- 
stitution, nor prohibited by it to the states, are reserved 
to the states respectively, or to the people." If these 
amendments had never been adopted, the construction 
of the Constitution as a whole would lead inevitably to 
the conclusion that, in so far as the states are not con- 
trolled by the expressed or implied restrictions contained 
in the Constitution of the United States, they may 
severally exercise all the powers of independent gov- 
ernments.^ 

128. The nature and extent of the reserved rights of 
the states must be determined by a process of reasoning 
by exclusion, involving a statement of the specific consti- 
tutional restraints upon freedom of state action, and a 
conclusion that any state may, so far as the United 
States are concerned, rightfully exercise every power of 
government which is not included within the specific 
restraints thus enumerated. A consideration of the 
terms of the Constitution and of the effect of the judg- 
ments of the court, which have been cited in the pre- 
ceding chapters of this book, renders it easy to formulate 

^ Supra, Sec. 3. 



EESTRAINTS ON THE STATES. 277 

a statement of the general nature of the constitutional 
restraints upon the states. By force of those restraints, 
a state cannot withdraw from the Union, nor deprive 
itself of its rights as one of the United States, nor 
emancipate itself from the constitutional limitations 
upon freedom of state action ; it cannot have any inter- 
national relations with foreign states, nor with any other 
of the United States ; it cannot enter into treaties with 
foreign powers, nor make interstate compacts ; it cannot 
engage in war, unless actually invaded, or in such immi- 
nent danger as will not admit of delay ; it cannot grant 
letters of marque and reprisal ; it cannot adopt any other 
than a republican form of state government, nor grant 
any title of nobility ;^ it cannot prescribe the conditions 
of its citizenship, for the birth within the United States 
of any person subject to their jurisdiction, or the nat- 
uralization of any person under the acts of Congress, fol- 
lowed, in either case, by residence within a state makes 
the person so born or naturalized, and so residing, a 
citizen of that state ; it cannot, in its regulation of the 
exercise of the right of suffrage by its citizens, dis- 
criminate because of race, colour, or previous condition 
of servitude ; it cannot, in its action with regard to its 
own citizens or with regard to temporary denizens 
within its territory, abridge those privileges or immu- 
nities which are common to citizens of the United 
States, nor deprive any person of life, liberty, or prop- 
erty, without due process of law, nor deny to any person 

^ Section 4 of Article IV of the Constitution requires the United States to 
" guaranty to every state in this Union a republican form of government." It 
rests with Congress to decide what government is the established one in a 
state, and also to determine upon the means proper to be adopted to fulfil the 
guaranty of a republican form of government to the states : Luther v- Borden, 
7 How. 1, 42. Chase, C. J., pointed out in Texas v. White, 7 Wall. 727, that 
this constitutional obligation required the United States, after the suppression 
of the Eebellion, to re-establish the representation in Congress of the states 
lately in rebellion. 



278 CONSTITUTIONAL EESTEAINTS. 

the equal protection of the laws ; it cannot deny to citi- 
zens of other states those privileges and immunities of 
citizenship which it allows to its own citizens ; it cannot 
tax the property of the United States, nor the agencies 
employed by the United States in the execution of its 
constitutional powers to such an extent as to interfere 
with the full performance by such agents of their duties 
to the United States, nor the subjects of foreign or 
interstate commerce in such a manner as to amount to 
a regulation of such commerce, nor lay any imposts or 
duties on imports or ex23orts, except what may be abso- 
lutely necessary for executing its inspection laws, nor 
lay any duty on tonnage; it cannot coin money, nor 
emit bills of credit, nor make anything but gold and 
silver coin a tender in payment of debts; it cannot, by 
any law or by any act to which it, by its enforcement 
thereof, gives the force of a law deprive a -partj of the 
legal right of enforcing, or obtaining compensation for 
the breach of, an express and valid contract, exe- 
cuted or executory ; it cannot regulate commerce, 
foreign, or interstate, or with the Indian tribes, by 
obstructing, or burdening, or discriminating against, such 
commerce ; it cannot exercise judicial jurisdiction over 
persons or subject-matters rightfully withdrawn by the 
United States from its jurisdiction, and in its exercise 
of jurisdiction it cannot derogate from the supremacy 
of the Constitution, laws, and treaties of the United 
States, nor fail to give full faith and credit to the public 
acts, records, and judicial proceedings of every other 
state ; it cannot pass any bill of attainder or ex post 
facto law ; and it cannot so exercise its powers of police 
regulation as to interfere with the exercise of the con- 
stitutional powers of the United States, or, in other 
words, in such manner as to operate upon persons or 
property brought within its jurisdiction in the exercise 



. CONSTITUTIONAL KESTEAINTS. 279 

of powers granted to the United States, before such 
persons or property shall have lost their distinctive 
character and merged in the mass of persons or prop- 
erty within the territory of the state. Such are sub- 
stantially the constitutional restraints upon the powers 
of the states ; and their practical effect is, that, while 
limiting the powers of each state in that which concerns 
forei2:n nations, and in that which affects the interests 
of other states, and of the citizens of those other states, 
it yet reserves to each state full powers of self-govern- 
ment in all that affects only the interests of that state, 
and of its own citizens. 

129. The Constitution was the result of a struggle 
between contending parties, the one fearing a disin- 
tegration of the Union as a consequence of the weak- 
ness of the confederation, and striving to create a nation, 
and the other mindful of the contest for the inde- 
pendence of the colonies, and seeking to sacrifice as 
little as possible of the autonomy of the states. For- 
tunately for the peace and prosperity of the country, and 
for the permanency of its free institutions, neither party 
triumphed, and their conflict of opinion gave birth to 
a government, which, though national in its relations to 
foreign powers, and in the directness of its action upon 
the citizens of the several states, is also federal in its 
reservation to the states and the people of all powers 
not expressly, or by necessary implication, granted to 
the United States. The distinguishing characteristics 
of the Constitution, thus created, are the limitation in 
terms of the powers confided to the United States, the 
reservation to the states of the right of local self-gov- 
ernment, and that practical conservatism, which is the 
necessary consequence of the supremacy of a written 
Constitution, whose manner of amendment guards it 
against hasty changes. The government created by 



280 THE FEDERAL EQUIPOISE. 

that Constitution has stood the tests of time and growth ; 
its nationality has survived the shocks of foreign, and 
of civil, war ; and its recognition of the principle of 
home rule has overcome the disintegrating tendencies 
of the expansion of territory and the increase of popu- 
lation. That in the future as in the past the United 
States may escape the perils of dissolution and the 
dangers of consolidation, it is necessary that its Consti- 
tution be maintained in its integrity, and that the re- 
served rights of the states, and the supremacy of the 
United States within the limits of its del,egated powers, 
be alike jealously guarded. So long as that just equi- 
poise of federal and of state power shall be preserved, 
the states, united for the promotion of the general wel- 
fare, and independent in all matters of merely local 
concern, will triumph over all that may menace the per- 
petuity of their free institutions. 



INDEX. 



THE REFERENCES ARE TO THE PAGES. 



ABOLITION OF SLAVERY. 

By the XIII Amendment, 6. 
ADMIRALTY. 

Jurisdiction in, 46, 196. 

AGENCIES. 

Of United States, state taxation of, 28. 

Of states, federal taxation of, 23. 
ALLEGIANCE. 

Due to United States and to state, 7. 
ALLIANCES. 

By states forbidden, 189. 
ALIENS. See Naturalization. 
AMBASSADORS. 

Jurisdiction as to, 196. 
APPELLATE JURISDICTION. See Judicial Power. 

ATTAINDER. 

Prohibition of bills of, 182. 

Bills of, defined, 185. 
BANKS, NATIONAL. 

Power of Congress to create, 10. 
BILLS OF ATTAINDER. See Attainder. 
BILLS OF CREDIT. 

Prohibition of state, 187. 

Definition of, 187. 

Illustrations of, 187, 188. 
BILLS OF EXCHANGE. 

Dealing in, taxable by states, 62. 

As in:5truments of commerce, 40, 41. 
BILLS OF LADING. 

State taxation of, 72. 

281 



282 mDEx. 

BRIDGES. 

Regulation of, 92. 

CASE. 

• Requisites of a judicial, 196, 211. 

CHARTERS. 

As contracts, 171, 173. 
Implied contracts in, 174. 

CITIZENS. 

Federal jurisdiction in suits between, 197. 

Citizenship of the United States, 250. 

Citizenship of a state, 252. 

The right of suffrage not a privilege of citizenship, 252. 

Discriminations forbidden in state regulation of suffrage, 252. 

Immunities of, 256. 

CIVIL RIGHTS. 

State regulation of as affecting interstate commerce, 54. 
Unconstitutionality of regulation of, by the United States, 
266. 

COMMERCE. 

Regulation of, 37. ^ 

Constitutional provisions as to, 87, 43. 

History of commerce clause, 39. 

Definition of, 40. 

Regulation of, defined, 41. 

Taxation, as regulation of, 34, 42. 

Distinction between internal, and foreign or interstate, 44. 

Federal action in regulation of, 44. 

State action in regulation of, 45. 

Incidental regulation of, 59. 

COMPACTS. See Alliances. 

CONFLICT OF JURISDICTION. 

The rule as to, between state and federal courts, 238. 

CONSTITUTION OF THE UNITED STATES. 
By whom ratified, 1. 
Effect of ratification of, 1. 
Construction of, 215. 
Supremacy of, 273. 

CONSTRUCTION. 

Of the Constitution by the judicial power, 215. 



INDEX. 283 

CONTRACTS. 

Constitutional prohibition of impairment of obligation of, 145. 

"Law" defined, 146. 

Obligation of, defined, 149. 

Regulation of remedies, 149. 

" Contracts " defined, 1 53. 

Of exemption from state taxation, 159, 166. 

Made by states, 160, 164. 

History of the clause, 160. 

Executory, 165. 

Charters as, 171. 

With political subdivisions, 173. 

Implied, in charters, 175. 

Implied exemption from taxation, 176. 

Implied exemption from police power, 178. 

As aflTecting suits against states, 180. 

The force and effect of the constitutional prohibition, 181. 

COURTS-MARTIAL. 

Jurisdiction of, 213. 

CURRENCY. 

Legal tender, 12. 

DAMS. 

Regulation of, 92. 

DIRECT TAXES. 

Imposition of, by United States, 22. 

DUE PROCESS OF LAW. 

Definition of, 226. 

EQUAL PROTECTION OF THE LAWS. See XIV Amend- 
ment. 

EXPORTS. 

State taxation of, 25, 82. 

Term not applicable to interstate commerce, 73. 

Taxation of, by United States, 81. 

EX-POST FACTO LAWS. 

Prohibition of, 182.- 
Ulustrations of, 184, 185. 
Definitions of, 183. 

EXPRESSED RESTRAINTS. 
On states, 4. 



284 INDEX. 

FERKIES. 

Regulation of, 99. 

FOREIGN CORPORATIONS. 

Rights and liabilities of, 258. 

FOURTEENTH AMENDMENT. 

As affecting the exercise of judicial power by the states, 239. 
As affecting state power over personal and property rights of 
citizens, 264. 
FUGITIVES FROM JUSTICE. 
State obligations as to, 190. 
Jurisdiction as to issue of habeas corpus in cases of, 191. 

GOODS. 

Taxation of, in course of interstate transportation, 73. 

GRANTS. 

As contracts, 165. 
GUARANTY. 

Of republican government to the states, 277. 
HABEAS CORPUS. 

In cases of fugitives from justice, 191. 

In cases of restraint of liberty in violation of the Constitu- 
tion, 209. 
HEALTH LAWS. See Quarantine. 
IMMUNITIES OF CITIZENSHIP. See Citizens. 
IMPAIRING CONTRACTS. See Contracts. 
IMPARTIAL SUFFRAGE. See Citizens. 

IMPEACHMENT. 

Jurisdiction in, 213. 
IMPLIED POWERS. 

Defined, 3. 

Necessity of, 8. 

Grant of, 9. 

Illustrations of, 10, 11, 12. 

IMPLIED RESTRAINTS. 
On states, 4, 5. 

IMPORTS. 

State taxation of, 25, 82. 

Term not applicable to interstate commerce, 73. 
IMPOSTS. 

State imposition of, 25, 81. 



INDEX. 285 

IMPROVEMENTS OF NAVIGATION. See Navigable 

Waters. 
INCIDENTAL POWERS OF CONGRESS. See Implied 

Powers. 

INDIAN. 

Tribes, not states, 143. 
Regulation of commerce with, 144. 

INDICTMENT. 

Not amendable after submission to the grand jury, 226. 

INFORMATION. 

Prohibition of prosecution upon, for capital or infamous 

crimes, 226. 

INSOLVENT LAWS. 

Effect of state, 155. 

INSPECTION LAWS. 

State, 86. 

JUDGES. 

Tenure of office of federal, 194. 

Compensation of, not diminishable during continuance in 
office, 194. 

JUDICIAL POWER. 

Necessity of federal, 192. 

Constitutional provisions as to federal, 194. 

Limited grant of federal, 195. 

Federal jurisdiction in criminal causes, 200. 

Exclusive federal jurisdiction, 201, 204. 

Original jurisdiction of the Supreme Court, 205. 

Removal of causes, 206. 

Appellate jurisdiction, 208. 

Jurisdiction in habeas corpus, 209. 

Jurisdiction as to political questions, 211. 

Courts-martial, 213. 

Military commissions, 213. 

Impeachments, 213. 

Construction of the Constitution, by, 215. 

Suits against states, 198, 217. 

Limitation of, by the IV, V, VI, and VII Amendments, 225. 

The federal supremacy as affecting, 231. 

The reserved rights of the states as affecting the federal, 233. 

Of the states, 234. 



286 ^ INDEX. 

JUDICIAL FOWEU— Continued. 

Of the states as affected by the grant of judicial power to the 
United States, 234. 

Of the states as affected by the XIV Amendment, 239. 
Of the states as affected by section 1 of Article IV, 242. 

JUDGMENTS. 

As contracts, 158. 

Effect of in the states, 242. 
JURISDICTION. 
' Conflict of. See Conflict of Jurisdiction. 

JURISDICTION OF COURTS OF UNITED STATES. 

Under constitutional grants and acts of Congress, 195. 
JURISDICTION OF STATE COURTS. 

As affected by the Constitution, 234. 
JURY. 

Trial by, not to be taken away, 225, 229, 230, 231. 

Discriminations forbidden in state regulation of jury 
service, 253. 

LANDS. 

Public, state taxation of, 27. 

LAWS OF UNITED STATES. 
Supremacy of, 274. 

LEGAL TENDER. 

Power of Congress over, 12. 
LICENSE LAWS. See Police Regulation. 

LIFE, LIBERTY, AND PROPERTY. See Rights of Per- 
son AND OF Property. 
MERCHANDISE. See Goods. 
NATIONAL BANKS. 

Power of Congress to create, 10. . 

Taxation of, by states, 29. 
NATURALIZATION. 

Regulation of by United States, 251. 

Courts of the states may admit to citizenship under acts of 
Congress, 251. 
NAVIGABLE WATERS. 

Defined, 45. 

Title to land under, 47. 

Improvements of, 87. 



INDEX. 287 

NAVIGATION. 

Regulation of by United States, 50. 

Regulations of by states, 55. 

Improvements of, 87. 
ORDINANCE. 

Of 1787, effect of on regulation of commerce, 98. 

ORIGINAL JURISDICTION. See Judicial Power. 
PAINS AND PENALTIES. 

Prohibition of bills of, 182, 186. 
Definition of bills of, 186. 

PATENTS. 

Granted by United States, do not exempt from state taxa- 
tion, 28. 

Nor from state police power, 269. 
PERSON, RIGHTS OF. See Rights of Person. 

PILOTAGE. 

Regulation of, 107. 

POLICE REGULATION. 

As affecting commerce, 175. 

Implied exemption by contract from, 178. 

Definition of, 266. 

By the United States, 267. 

By the states, 267. 

The rule as to, 271. 

PORT DUES. 

Imposition of, by states, 120. 

PORT REGULATIONS. 

Under state authority, 121. 

PORTS. 

Preferences of, 122. 

PREAMBLE OF CONSTITUTION. 

Force and effect of, 6. 
PRIVILEGES OF CITIZENSHIP. See Citizens. 

PROCESS OF LAW. 

Definition of due, 226. 
PROPERTY, RIGHTS OF. See Rights of Property. 
PUBLIC LANDS. See Lands. 
QUARANTINE. 

Regulation of, 116. 



288 INDEX. 

RAILWAYS. 

State regulation of interstate transportation by. 123. 
Tolls for use of improved facilities of transportation, 124. 
State police, regulation of, 125. 
State taxation of, 131. 

RATIFICATION. 

Of Constitution, effect of, 1. 
RECEIPTS OF TRANSPORTATION. 

State taxation of, 132, 137, 138. 

RECORDS AND LAWS. 

Proof of in other states, 242. 
REGULATION. 

Of commerce. See Commerce. 

Of remedy. See Contracts. 
REMEDY. 

Regulation of. See Contracts. 
REMOVAL OF CAUSES. See Judicial Power, 
RESERVED POWERS AND RIGHTS OF THE STATES. 
See States. 

RETROSPECTIVE LAWS. 

Not prohibited, 182. 

RIGHTS OF PERSON AND OF PROPERTY. 

• Constitutional protection of, 226. 
State control over, 254. 
As affected by XIV Amendment, 264. 
SECESSION. 

Unconstitutionality of, 1. 

SELF-GOVERNMENT. 

Reservation of right of, to the states in local matters, 279. 

SHIPPING. 

Regulation of by United States, 57. 
Regulation of by states, 53. 
State taxation of, 63. 

STATES, THE. 

Existence of, before the Constitution, 2. 
Foreign to, and independent of, each other, so far as not 
controlled by Constitution, 2. 

Powers and obligations of new, 2. 
Taxation by, 23. 



INDEX. 289 

STATES, THE— Continued. 

Suits against, as affected by contracts, 180. 
Suits against as affected by the XI Amendment, 198, 217. 
Judicial power of, as affected by the federal supremacy, 231. 
Judicial power of the states as affected by the grant of 
judicial power to the United States, 236. 

Judicial power of the states as affected by the XIV Amend- 
ment, 239. 

Reserved rights of, 276. 
Necessity for maintenance of, 279. 

SUITS. 

Against states. See States. 

SUPREMACY OF THE UNITED STATES. 

State taxation affected by the, 25. 

State regulation of federal judicial process or practice, 231. 

Supremacy of the Constitution, 272. 

Supremacy of the laws of United States, 274. 

Supremacy of the treaties of United States, 274. 

Effects of the, 275. 

SUPREME COURT. See Judicial Power. 

TAXATION. 

Defined, 18, 19. 
Power of, in whom vested, 19. 
By United States, 20. 

By United States, constitutional provisions as to, 21. 
Uniformity of, 22. 
By the states, 23. 
Of imports and exports, 25, 81. 
Of state agencies, 23. 
Of federal agencies, 28. 
Of national banks, 29. 
As affected by contracts of exemption, 33. 
As a regulation of commerce, 34. 
Not to be imposed for private purposes, 20. 
Direct, 22. 

Discriminating against products on manufactures of other 
states, 75. 

TELEGRAPHS. 

Regulation of, 140. 
State taxation of, 142. 
19 



290 II^DEX. 

THIRTEENTH AMENDMENT. 

Effect of, 263. 
TITLES OF NOBILITY. 

Not to be granted by the states, 277. 
TONNAGE. 

Defined, 66. 

State taxation of, 25, 66. 
TRANSIT. 

Right of, not limitable by state taxation, 28. 
TRANSPORTATION. 

By water, taxation of, by United States, 67. ' 

By water, taxation of, by states, 68. 

By land, taxation of, by states, 131. 
TRADE-MARKS. 

Regulation of, by United States, 67. 
TREATIES. 

Supremacy of, 274. 

TRIAL BY JURY. See Jury. 

TRIBES. See Indian. 

UNION. 

Indissolubility of, 1. 

UNITED STATES. 

Limited powers of, 2. 

Supremacy of, 3. 
WARRANTS. 

Requisites to issue of search, 225. 
WATER-WAYS. See Navigable Waters. 
WHARFAGE. 

Regulation of, 105. 

WITNESSES. 

Right of accused to be confronted with, 229. • 

Right of accused to have compulsory process for obtaining, 230. 




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